Terms and Conditions
Please read these Terms & Conditions carefully. It is a condition of our Work for you and your use of any of our service that you comply with these Terms & Conditions.[rev 11/28/2017]
1.1 “Agreement” means (1) any Marketing Services Proposal, Website Development Proposal or other proposal from or contract or agreement (including but not limited to Nondisclosure or Confidentiality Agreements and/or purchase orders, between you and Simple Machines Marketing, LLC, (2) and any applicable Schedule of Work, and (3) these Terms.
1.2 “Customer Materials” means your text, graphics, forms, templates, databases, software, logos, Intellectual Property or administrative features that you provide to us.
1.3 “Deliverables” means the tangible work product resulting from our performance of Work under an Agreement. The tangible work product may include hardware, software, documentation, license key codes, specifications, text, graphics and other materials, including any updates and upgrade thereto, and may further include third party components, including open source components, which are provided and licensed to you under the terms and conditions of respective third party licenses, and as may be otherwise described in the applicable Schedule of Work.
1.4 “Effective Date,” unless otherwise specified in an Agreement, means the date on which our specific Work under the applicable the Schedule of Work commence.
1.5 “Furnish-Only” means Products that Customer installs.
1.6 “Intellectual Property” includes without limitation inventions, discoveries, creations, works of authorship and other subjects of patent, copyright or trade secret law.
1.7 “Schedule of Work” means the Description of Work, Specifications, performance obligations, Payment Terms and/or Delivery Schedule as agreed between you and us with respect to the specific Work at issue.
1.8 “Simple Machines,” “we,” “our” and “us,” refer to Simple Machines Marketing LLC, its subsidiaries and affiliates, as well as any other person or entity providing Work to you under the direction of Simple Machines.
1.9 “Terms” means these Terms and Conditions.
1.10 “Work” means the specific services and/or Deliverables we will provide you under an Agreement between you and us.
1.11 “You,” “your” and “Customer” means the person or entity that enters into an Agreement with Simple Machines.
2. SCOPE OF WORK; DELIVERY SCHEDULE; ROUNDS OF CHANGES
2.1 SCOPE CHANGE. A “Scope Change” is any material change or addition requested by you to the Description of Work, Specifications, performance obligations, Payment Terms and/or Delivery Schedule. A Scope Change is not intended to include the mere refinement, correction or detailing of Work.
2.2 SCOPE CHANGE CONSEQUENCES. If you request a Scope Change, you shall provide us written notice. Upon our receipt of such notice and acceptance of the Scope Change, we reserve the right to amend the Schedule of Work, including but not limited to Payment Terms and Delivery Schedule. Our performance of Work requested by a Scope Change will not begin until the receipt by us of a signed Scope Change or amended Schedule of Work.
2.3 TIMELINESS. We will make reasonable efforts to meet the Delivery Schedule. Further, in the event of a Scope Change or delay in receiving content or other requested materials from you, we reserve the right to unilaterally amend the Delivery Schedule and cost of Work in a manner that is reasonable and commensurate with the nature of the Scope Change or delay. We will provide you with timely notice of any such amendments.
2.4 CONTENT DEPENDENCIES. Whenever you must submit text or graphics to us, You shall submit text in digital format (either ASCII text or Microsoft Word files) and graphics in digital format (.gif, .tif, .bmp, .jpg). Any delay in the proper delivery of text and graphics may result in a corresponding delay in the Delivery Schedule, adjustment of the cost of Work, or both.
2.5 EDITORIAL AND TECHNICAL CONSULTING SERVICES FEES. If you request and we agree to provide Editorial Consulting Services and/or Technical Consulting Services, then we shall provide and you shall pay for such additional services at agreed upon rates.
2.6 TRAVEL EXPENSES. Travel expenses are not a component of the costs charged under any Agreement. Therefore, you will reimburse us for all reasonable travel, accommodation and related costs in the event that one or more of our employees must travel from our headquarters in connection with your Work.
2.7 OUTSIDE RESOURCES. Simple Machines may contract with outside resources to assist us in providing the proper Work and value to fit their needs. During the term of any Agreement between Simple Machines and you and for twelve (12) months after the end of any such Agreement, you agree to not directly or indirectly contract with any such resource which Simple Machines has contracted with to help service you without our prior written consent.
2.8 ROUNDS OF CHANGES. Unless otherwise specified in the applicable Schedule of Work: (a) we include a “fair” and “reasonable” set number of rounds of changes (three (3) rounds) during our Work on a website or the application design and development phase; (b) any extra changes required by you may incur additional fees and costs; and (c) changes must be submitted in one (1) email and one (1) email of changes (within the scope of a Project) is considered one (1) round of changes. Please ensure that you limit your changes to comply with the agreed specifications. Failure to do this may result in you incurring additional fees and costs.
2.9 FAILURE OR DELAY; SUPPORT. We are not obliged to put in place any substitute or alternative system should there be a failure of or delay in the provision of any Work. Except as otherwise specified in a Schedule of Work, we are not obliged to support any Deliverable, whether by providing advice, training, error correction, modification, updates, new releases or enhancements or otherwise.
3. PAYMENT TERMS
The following payment terms apply unless otherwise specified in the applicable Agreement with you.
3.1 DUE DATES. Unless otherwise specified in the Schedule of Work, you agree to pay us for all Deliverables, without offset, according to our invoice terms we provide to you. All amounts quoted or agreed to between us are net of applicable taxes or any other governmental-imposed charges or expenses. All such taxes and any other governmental-imposed charges or expenses are your responsibility, except (a) taxes on our net income, and (b) unless otherwise specified in the Schedule of Work. Invoiced amounts may include applicable sales or use taxes. With respect to all payments which may be due and payable to us by you under an Agreement, time is of the essence.
3.2 LATE PAYMENT. If you do not pay us when due, you authorize us to charge (a) a fixed late fee equal to $50.00, plus (b) interest at a rate of 1.5% per month on all amounts due and owing. In addition, you will also be liable, without prior notice, for all collection costs we may incur pursuing you for unpaid obligations or other breaches of any Agreement, including but not limited to court costs and reasonable attorney’s fees.
3.3 RETAINER. Unless otherwise specified in the Schedule of Work, we reserve the right to request that you provide us with a retainer (“Retainer”) prior to commencement of Work, or at any other time that we may deem it necessary or appropriate. Any such Retainer may, at our option, be either held by us to apply against the last invoice provided for a Project, or applied monthly against invoices or other amounts you then owe us. You will be periodically provided with the details of each such application of amounts from the Retainer and then you will replace, or “true-up,” the amounts used from Retainer so that the full Retainer is available, if necessary, to be used for the next monthly or other periodic application against amounts you may owe us for the Work. We will not pay you any interest or other amounts on any Retainer balance. At your written request, we will return to you the balance of any Retainer after the Work is completed and all amounts due us are finally satisfied.
3.4 INSUFFICIENT FUNDS. A charge of $50.00 will be assessed for all checks or other payments returned from the bank due to insufficient funds or other problem with your bank relationship or available funds.
3.5 SUSPENSION OF WORK/TERMINATION OF WORK. In the event that any payment due to us is more than fifteen (15) days late, we are entitled, at our discretion and without prior written notice or prejudice to any other remedies we may have, suspend our Work, withhold Deliverables and/ or terminate any Agreement.
3.6 CREDIT CHECK. You agree to allow us to engage a credit reference agency to determine whether we should extend credit to you. If we determine that your credit is insufficient, then we reserve the right to require full payment for Work rendered in advance.
3.7 BLOCK OF TIME. From time to time we may offer and you may purchase a block of hours (“Block”) at a reduced rate from our “rack rate” for one (1) or more specific projects. When purchased, the period of time over which such Block may be used at your direction will be specified. Hours so purchased in a Block but not used when the specified period ends shall expire, unless in our sole discretion, we may allow you to use some or all of the unused hours for a related or similar project. However, amounts paid for a Block (in part or in whole) are not refundable and may not be “carried”” over to a subsequent year without out prior written approval, which may be granted or withheld in our sole discretion.
3.8 INCREASE FEES. We reserve the right to adjust our hourly rates by 5% year over year, not more than once a year, and we will endeavor to provide you with prior written notice of any such changes.
3.8 CANCELLATION. If we discontinue Work due to your non-payment, or other breach of the Agreement, you remain liable to us for the total cost of the Agreement or specific Schedule of Work at issue, including all disbursements; unless otherwise agreed between the parties. Furthermore, we will not refund (in part or in whole) any deposits received for the commencement of Work, under any circumstances unless we otherwise agree in writing. We reserve the right to keep all amounts from the deposit if Work has commenced and is terminated by you without cause or us with cause. We will not be liable for any loss or damage whatever arising from any such cancellation. If you terminate without cause, you are responsible for our costs and expenses incurred to date, as well as the remaining balance of the payments to be due under the Agreement or the applicable Schedule of Work.
3.9 QUOTE TERM. All prices quoted are valid for only thirty (30) days from the date of written quotation, unless otherwise specified in the applicable quote or proposed Schedule of Work.
4. LICENSE TERMS
4.1 CUSTOMER MATERIALS. We agree that the Customer Materials shall be and remain the sole property of Customer. You represent and warrant that you have full right, license and authorization to provide such Customer Materials to us for us to use as necessary in or for the Work, and/or otherwise for our reproduction and/or publication of the Customer Materials as necessary or desirable as part of or related to the Work and/or any Deliverables. Furthermore, you indemnify and agree to defend and hold us harmless from any and all liability, loss, damages, costs and expenses arising from our use of such Customer Materials. You also grant us a nonexclusive, fully-paid and royalty-free license to use, reproduce and modify any Customer Materials that you may provide to us for the purpose of or as part of our performing the Work and/or creating and making use of any Deliverables.
4.2 OWNERSHIP OF DELIVERABLES. We shall retain ownership of all Deliverables, except with respect to any Customer Materials, including without limitation all of our tools, applications, templates , libraries and similar items we bring to each project or which we obtain or create and which are used to develop the Deliverables and/or are incorporated into the Deliverables.
4.3 RETENTION OF RIGHTS. Subject to the rights granted herein, we will retain all ownership of all Intellectual Property in and to our programs, systems, links, tools, templates and all technologies and methodologies created, obtained or developed by us or licensed to us, as well as all of the products of any Implementation Support Services, Editorial Consulting Services or Technical Consulting Services, or other services provided by us for you. Notwithstanding the foregoing, you retain ownership of all of your Intellectual Property that you may license or provide to us to use as part of the Work.
4.4 CUSTOMER LICENSE. We grant you a non-exclusive, worldwide and non-transferable license to use any Deliverables we provide to you as described in the relevant Schedule of Work. You may transfer these rights only in conjunction with a merger or a sale of substantially all of your assets, in which case such rights will be transferred only to the surviving or acquiring entity. This license does not permit you to sublicense rights to any third parties without our prior written consent.
4.5 USE OF SIMPLE MACHINES’ INTELLECTUAL PROPERTY. Without limiting the generality of anything set forth in the applicable Agreement, you agree that you shall use our Intellectual Property and any Intellectual Property of others that we have provided and/or otherwise licensed to you solely as permitted by such Agreement and shall not yourself or permit others before, during or after the Term to:
4.5.1 sell, resell, rent, license, sublicense, transfer, assign or redistribute in any way such Intellectual Property, except as may be expressly permitted by us;
4.5.2 provide, disclose, divulge or make available to, or permit use of such Intellectual Property by any third party without our prior written consent, which consent we may withhold for any or no reason;
4.5.3 attempt to reverse engineer, decompile, disassemble or otherwise attempt to derive any of our computer programs, source code, patents, copyrights, trade secrets or such Intellectual Property, or our methodology related to the creation and compilation of our tools and links or any other information furnished by us to you. All information required (a) to achieve interoperability of any software programs provided by us pursuant to the applicable Agreement with other software programs, or (b) to correct any errors in such software programs, is available from us without cost. You shall not copy any such computer programs other than for normal operation, provided always that you shall be permitted to maintain a back-up copy of any such programs as part of its normal back-up routine;
4.5.4 compile or create any derivative products based upon the such Intellectual Property; and
4.5.5 take any action in derogation of or adverse to our rights in and to such Intellectual Property.
4.6 AUDIT RIGHTS. You agree that an independent audit firm may, upon reasonable notice, examine and audit your records, operations and systems to ensure compliance with any license granted by us. Any audit will be performed during your regular business hours and in a manner which avoids unreasonable interference with your business operations.
5. WARRANTY DISCLAIMER/LIMITATION OF LIABILITY/INDEMNIFICATION
5.1 WARRANTY DISCLAIMER.
5.1.1 WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE WORK, SERVICES, DELIVERABLES, INTELLECTUAL PROPERTY OR EQUIPMENT YOU RECEIVE FROM US, AND DISCLAIM ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS SPECIFICALLY CONTAINED IN THE APPLICABLE SCHEDULE OF WORK. OTHER THAN THAT, ALL OF SUCH ARE PROVIDED ON AN “AS IS” BASIS, AND YOUR USE OF SAME IS AT YOUR OWN RISK.
5.1.2 WE ARE NOT RESPONSIBLE FOR CIRCUMSTANCES BEYOND OUR CONTROL, INCLUDING WITHOUT LIMITATION ACTS OR OMISSIONS OF OTHERS, ATMOSPHERIC CONDITIONS OR ACTS OF GOD. WE DO NOT PROMISE UNINTERRUPTED OR ERROR FREE SERVICE. WE MAY NOT MANUFACTURE ANY EQUIPMENT OR SOFTWARE THAT YOU MAY USE IN CONNECTION WITH YOUR SERVICE, AND YOUR ONLY WARRANTIES AND REPRESENTATIONS WITH RESPECT TO EQUIPMENT OR SOFTWARE ARE THOSE PROVIDED BY THE MANUFACTURER (WITH RESPECT TO WHICH WE HAVE NO LIABILITY WHATSOEVER).
5.2 LIMITATION OF LIABILITY.
5.2.1 EXCEPT FOR DAMAGES CAUSED BY OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL WE BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, DATA OR USE, THE COST OF ALTERNATIVE WORK OR SERVICES OR FOR INTERRUPTED COMMUNICATIONS OR NETWORK OUTAGES, OR FROM ANY DEFECT, EFFORT OR MALFUNCTION OF ANY WORK, SERVICES OR DELIVERABLES, EVEN IF WE HAVE BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES.
5.2.2 IN THE EVENT WE ARE FOUND TO BE RESPONSIBLE TO YOU FOR DAMAGES IN ANY WAY RELATING TO OUR WORK, SERVICES, DELIVERABLES, INTELLECTUAL PROPERTY OR EQUIPMENT, YOU AGREE THAT OUR LIABILITY TO YOU WILL NOT EXCEED THE LESSER OF (1) THE GROSS PRICE OF THE APPLICABLE SCHEDULE OF WORK WITH YOU, OR (2) THE PRO-RATED MONTHLY RECURRING CHARGE FOR THE APPLICABLE SERVICES DURING THE PERIOD IN WHICH YOU INCUR SUCH DAMAGES.
5.3 CUSTOMER DATA. Notwithstanding anything to the contrary in these Terms or otherwise in any Agreement: (a) it is the responsibility of the Customer that all of its files and/or data is adequately duplicated, documented and backed-up; and (b) We are not responsible for Customer’s failure to adequately duplicate, document and/or back-up Customer files and/or data, nor for the costs of reconstructing any file or data stored on discs files, tapes, memories, or otherwise which may be lost during the course of our Work.
5.4 INDEMNIFICATION. You agree to indemnify and to defend and hold harmless us and our its affiliates, and its and their employees, officers, owners, representatives and agents, from any and all claims, losses, liabilities, damages, expenses and costs (including reasonable attorneys’ fees and court costs) to the extent it results: (a) from your use of any Deliverable or any of Services; (b) from your breach of any of your covenants, obligations or representations set forth in any applicable Agreement; (c) from the transmission by or for you of any illegal and/or fraudulent or offensive material; or (d) from any willful, unlawful or negligent act or omission of you, your users or contractors.
6. MUTUAL COVENANTS
6.1 CONFIDENTIAL INFORMATION. “Confidential Information” means any information disclosed by one party to another (a) in written, graphic, machine readable or other tangible form and is marked “Confidential”, “Proprietary” or in some other manner to indicate its confidential nature, and (b) oral information designated as confidential at the time of oral disclosure and designated in writing as “Confidential Information” within thirty (30) days after oral disclosure. As between you and us, Intellectual Property provided to you by us, whether or not so designated, shall be deemed our Confidential Information.
6.2 DEGREE OF CARE. Each party shall not disclose to any third party or use such Confidential Information except as permitted pursuant to the applicable Agreement. Each party shall use the same degree of care which it uses to prevent the disclosure of its own Confidential Information of like importance to prevent the accidental disclosure and shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of Confidential Information
6.3 NO SOLICITATION. You acknowledge that we provide a valuable service under the applicable Agreement and by introducing you to various persons qualified to perform the Work. You further acknowledge that you would receive substantial additional value, and we would be deprived of the benefits of our work force, if you directly or indirectly hire our employees or contractors after they have been introduced to you by us. Therefore, without our prior written consent, you shall not directly or indirectly solicit the employment or retainment of our employees or contractors who are or have been assigned to perform Work for you until at least one (1) year after completion of our Work. In the event that you employ or retain one of our employees or contractors assigned to perform Work, you agree to pay us within thirty (30) days of the date of such hiring or retention, an amount equal to 100% of the gross annual salary or other consideration we pay to or for the person you hire as a fee for the additional value obtained.
7. GENERAL PROVISIONS
7.1 FORCE MAJEUR. We shall not be liable for non-performance caused by events or conditions beyond our reasonable control. This provision does not relieve you from making payments due and owing.
7.2 RELATIONSHIP. These Terms are not intended to create a partnership, franchise, joint venture, agency or a fiduciary or employment relationship. Neither party may bind the other party or act in a manner which expresses or implies a relationship other than that of independent contractor.
7.3 NO WAIVER. The failure by us to enforce any provision of the applicable Agreement shall not be construed as a waiver of the provision.
7.4 SEVERANCE. If any provision of the applicable Agreement is held unlawful or otherwise ineffective, in whole or in part, by a court of competent jurisdiction, the remainder of such Agreement shall remain in full force and effect; and the provision modified, or such Agreement interpreted to the maximum extent permitted, to effectuate the original intent and purpose of the parties.
7.5 REMEDIES. Unless stated otherwise, all remedies provided for in the applicable Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity or otherwise.
7.6 ENTIRE AGREEMENT. The applicable Agreement constitutes the parties’ entire agreement relating to its subject matter. It cancels and supersedes all prior or contemporaneous oral or written communications, proposals, conditions, representations and warranties and prevails over any conflicting or additional terms contained in any quote, purchase order, acknowledgment or other communication between the parties relating to its subject matter during its term.
7.7 MARKETING AND PUBLIC RELATIONS. We reserve the right to publicize our Work in marketing and public relations materials. If we perform website development services for you, You authorize us to include our logo, meta-tags and reciprocal links on your website.
7.8 BINDING EFFECT. The applicable Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
7.9 JURISDICTION AND LAW. Any claim arising under or relating to any Agreement shall be governed by the internal substantive laws of the State of Illinois, without regard to its conflict of laws rules. You consent to the exclusive jurisdiction and venue in Cook County, Illinois or the U.S. District Court for the Northern District of Illinois. The parties hereby expressly waive any right to a jury trial and agree that any proceeding hereunder will be tried by a judge without a jury.
7.10 NOTICE. All written notices must be delivered in person or by means evidenced by a delivery receipt or acknowledgment and will be effective upon receipt. Notices communicated by electronic mail or facsimile will be deemed to be written.
7.11 EXPORT LAWS. Deliverables may be subject to export controls or trade laws of the United States and other countries. You will comply with all such laws and obtain all licenses to export, re-export or import as may be required.
7.12 ASSIGNMENT. Simple Machines may assign any Agreement to any affiliate, wholly-owned subsidiary or to any successor or owner of all or substantially all of its business or assets. No Agreement may be otherwise assigned in whole or in part, without out prior written consent and any such assignment shall be void and of no effect.
7.13 ATTORNEYS’ FEES. In the event of any proceeding or lawsuit is brought by us against you in connection with any Agreement, and if we are the prevailing party, we shall be entitled to receive all of our costs and expenses incurred, as well as reasonable attorneys’ fees, from you.
7.14 EFFECT OF EXPIRATION OR TERMINATION. Upon the expiration or termination of any Agreement for any reason, each party shall be released from all obligations to the other arising after the date of expiration or termination, except for obligations and responsibilities that by their nature survive any such termination.
8. HOSTED SERVICES TERMS OF SERVICE (“TOS”)
To Use Simple Machines Hosted Services, You:
8.1 Need to sign a hosting contract with Simple Machines.
8.2 Must provide us with accurate billing information, which we will keep on file.
8.3 Agree to pay all charges incurred on your account.
8.4 Acknowledge that surcharges may apply to some services, all charges are nonrefundable and we may change any of our paid services at any time.
8.5 Are responsible for all fees necessary to access our services, including Internet access and other wireless carrier charges.
8.6 Must not initiate or participate in any activities on our services that are illegal, harmful or interfere with anyone’s use of our services, including the sending of e-mail spam, emailing messages or posting content that exceeds our recommended size limits, or engaging in mass email campaigns.
If You Post Content On a Simple Machines Hosted Service, You:
8.7 Acknowledge that Simple Machines may monitor use of bandwidth and other resources necessary to supply services to all of Simple Machine’s customers. Simple Machines, in its sole discretion, shall have the right to take corrective action if utilization of bandwidth and other resources exceeds normal usage by a typical shared hosting customer. Such corrective action may, in Simple Machine’s sole discretion, include the assessment of additional charges, disconnection or discontinuance of any and all services, removal or deletion of web sites, content, e-mail services and/or other materials and services or termination of the account.
8.8 May post content that you create or have been given permission to post by the owner, provided such posting is legal and doesn’t violate the TOS or your applicable Agreement.
8.9 Are responsible for content that you post to our services and assume all risks of posting personal information online.
8.10 Content is subject to review and removal if it is illegal, harmful or interferes with anyone’s use of our services.
8.11 Violations of our TOS will result in termination of your Simple Machines Hosted Services account(s).
9. REVISIONS TO TERMS AND CONDITIONS
9.1 These Terms are subject to change at any time, by our revising such Terms on our website or in other ways providing you notice of any such change.