Last Modified: September 14, 2018
THESE TERMS OF SERVICE (these “Terms of Service”) are entered into by and between Array Digital, LLC, a Virginia limited liability company, located at 660 Independence Parkway, Suite 310, Chesapeake, Virginia 23320 (the “Company” or “Array Digital”) and the Client (the “Client” or “you”) (Company and Client each a “Party” and collectively the “Parties”), as defined in and as set forth in an applicable Digital Marketing Agreement (the “Digital Marketing Agreement”), dated and effective as of the date the signature page attached to such Digital Marketing Agreement is executed by Client (the “Effective Date”).
These Terms of Service, together with any documents and agreements they expressly incorporate by reference, including, without limitation, the Client’s applicable Digital Marketing Agreement (collectively, the “Agreement”), govern your access to and use of thisisarray.com (the “Website”), website hosting services, software purchases, and all related databases, digital marketing software applications, online platforms, and any other services set forth in the applicable Digital Marketing Agreement (collectively defined herein as the “Services” or “Array Digital Services”). The Website is a copyrighted work belonging to Array Digital. The Digital Marketing Agreement, payment schedules, and any other services agreements by and between Array Digital and you, as the Client, are incorporated herein by reference, and constitute part of the Agreement by the Parties.
WHEREAS, Company is in the business of digital marketing (the “Company Business”); and
WHEREAS, Client desires to engage Company to provide the Services, on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Services. Company agrees to perform the Services for Client as defined and described in the Digital Marketing Agreement, as may be amended or revised from time to time in accordance with the terms of this Agreement. Any subsequent Digital Marketing Agreement entered into pursuant to this Agreement shall be executed by an authorized officer of the Client and automatically become incorporated with and integrated into this Agreement, and shall be automatically included in the definition of “Digital Marketing Agreement” with such services outlined therein automatically included in the “Services” as defined herein. Any conflict or inconsistency between the provisions of this Agreement and any subsequently executed Digital Marketing Agreement shall be resolved by giving precedence to the executed Digital Marketing Agreement under which the Services are to be performed and then to this Agreement.
2. Nature of Relationship. Both the Company and Client agree that the relationship created by this Agreement is that of an independent contractor and not that of an employee and employer, and nothing contained herein shall be construed as the creation of a partnership or joint venture between the Parties. The Parties are each individually responsible for payment of any taxes, including, without limitation, all Federal, State, and local personal and business income taxes, sales and use taxes, other business taxes, and license fees arising out of the Parties’ performance of the terms and conditions of this Agreement.
3.1 Limited Warranty. Company hereby warrants to Client that the Services will be performed and consistent with the expressed definition and terms identified in the applicable Digital Marketing Agreement (the “Limited Warranty”). Client may notify Company of any claim of breach under and pursuant to the foregoing Limited Warranty by delivering written notice to Company within and no later than ninety (90) calendar days following Company’s declared completion of the Services. In the event Company breaches the Limited Warranty, Client’s exclusive remedy, and Company’s entire liability under said Limited Warranty, will be the Company performing the individual feature of the Services that gave rise to the Limited Warranty claim at no additional cost to Client in such a manner as to satisfy the Limited Warranty claim in the sole and commercially reasonable discretion of Company.
3.2 Limited Warranty Restrictions. Notwithstanding the Limited Warranty terms above, the Limited Warranty (i) does not apply and will be automatically cancelled if, during or after the Term (as defined below) hereof, another company, developer, agent, or contractor of Client modifies code, the database, or other programming logic installed or created by Company in performing the Services; (ii) does not include nor cover any deficiencies or incompatibilities arising from third party tools, software, applications, or service providers relied on or integrated by Company in performing the Services hereunder, regardless of whether the third party was recommended by Company; (iii) does not apply to any Services performed by Company relating to updating, revising, or altering any systems that existed prior to Company’s performance of the Services; and (iv) does not apply to any Services performed by Company that may be subsequently altered, modified, changed, or expanded upon by any non-Company agent or contractor.
3.3 Warranty Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 3.1 OF THIS AGREEMENT IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. OTHER THAN THE LIMITED WARRANTY STATED IN SECTION 3.1 ABOVE, THE MATERIALS PRODUCED IN PERFORMANCE OF THE SERVICES UNDER THE TERMS OF THIS AGREEMENT ARE PROVIDED TO CLIENT “AS IS,” THAT IS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED. SHOULD THE SOFTWARE OR SERVICES PROVE DEFECTIVE, CLIENT SOLELY ASSUMES THE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION, INCLUDING, WITHOUT LIMITATION, ANY “DEBUGGING.”
EXCEPT AS OTHERWISE STATED IN SECTION 3.1 ABOVE, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES RELATED TO INFORMATION OR BUSINESS ADVICE PROVIDED, WARRANTIES RELATED TO OUTCOMES BASED ON INFORMATION OR ADVICE PROVIDED, WARRANTIES RELATED TO WORK PRODUCT, DELIVERABLES, OR INTELLECTUAL PROPERTY, WARRANTIES OF MERCHANTABILITY OR MERCANTILE QUALITY, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR USE, WARRANTIES OR CONDITIONS ARISING BY STATUTE OR OTHERWISE IN LAW, OR WARRANTIES OF ANY PRODUCTS OR SERVICES PROVIDED BY THIRD PARTY VENDORS.
THE PARTIES AGREE THAT COMPANY’S LIABILITY FOR DAMAGES FROM ANY CAUSE OF ACTION WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED THE FEES PAID OR TO BE PAID BY CLIENT PURSUANT TO THE APPLICABLE DIGITAL MARKETING AGREEMENT UNDER THIS AGREEMENT. IN NO EVENT SHALL COMPANY BE LIABLE FOR LOST PROFITS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF USE OF ANY SOFTWARE OR HARDWARE, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST DATA, LOST PROFITS OR REVENUE, ANY DAMAGES FOR BREACH OF CONTRACT, NEGLIGENCE, OR OTHERWISE, OR FOR ANY CLAIM OR DEMAND BY ANY THIRD PERSON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, EVEN IF ADVISED OF THIS POSSIBILITY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
4. Fees; Invoices; Payment; Deposit.
4.1 Fees. Client shall pay and deliver to Company each month the amounts specifically identified, defined, and set forth in the Digital Marketing Agreement (the “Fee”). Company shall have the right to amend the Fee, in the Company’s sole discretion, from time to time at the end of the Minimum Term (as defined below) and at the end of each Renewal Term (as defined below); and Client shall pay and deliver to Company such foregoing described amended Fee upon receipt of notice from Company of the amended Fee. From time to time, Company may, upon receipt of prior electronic or written consent from Client, advance various expenses on behalf of Client related to Company’s performance of the Services hereunder (the “Expenses”). Client hereby agrees to pay Company for all Expenses, including an additional administrative fee for Company’s advance of any Expenses on its behalf in the amount of eight and 00/100 percent (8.00%) applied against the total monetary amount of the Expenses (the “Administrative Fee”). Client shall pay the Fee, the Expenses, and the Administrative Fee to Company pursuant to the terms of Section 4.2 below (the Fee, Expenses, and Administrative Fee collectively referred to herein as the “Compensation”).
4.2 Invoices; Payment. Company will invoice Client monthly on the day the executed Digital Marketing Agreement is received, and on the same day for the subsequent months thereafter according to your minimum commitment identifying the amount of Compensation owed by Client under Section 4.1 above (“Invoice”). Upon Client’s receipt of each Invoice, Client shall pay and deliver the Compensation amount set forth therein to Company by automatic clearing house (“ACH”) or by credit card/debit card on the day of each Invoice. Company, in its sole discretion may allow for payment of each Invoice by check which shall be paid by Client to Company within seven (7) calendar days of each Invoice.
All fees and pricing are quoted as US Dollars and include a three and 50/100 percent (3.50%) discount for cash payment (via wire transfer, ACH, physical check payments). If Client desires to pay by credit card (Visa, MasterCard, or American Express), or issue payment via another non-cash method (such as initiating payment from Client’s PayPal account resulting in a transfer fee), the 3.50% discount shall be inapplicable, and such amount shall be included as additional Compensation owed under the Invoice at time of payment.
In the event Client fails to pay and deliver the Compensation to Company for any Invoice within fourteen (14) calendar days from the Invoice date, Client shall be charged and hereby agrees to pay a late fee of eighteen percent (18%) per annum on all outstanding balances (the “Late Fee”).
5. Intellectual Property.
5.1 Definitions. For purposes of this Agreement, and, without limitation, this Section 5, the Parties hereby agree and consent to the following definitions:
“Background IP” means all Intellectual Property owned or licensed by a Party (a) before the Effective Date; or (b) independent of and exclusive from the Services and this Agreement.
“Developed IP” means any Intellectual Property (other than Background IP) created, resulting from, or discovered by Company or Client in connection with Services performed for the Client.
“Intellectual Property” or “IP” means anything protectable by an Intellectual Property Right.
“Intellectual Property Right” means all patent rights, copyrights, trademark rights, rights in trade secret (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (whether registered or unregistered) throughout the world.
5.2 Intellectual Property.
(a) The Parties hereby agree and acknowledge the Services and resulting Work Product (as defined below) and Developed IP are performed by Company under the doctrine of work-for-hire under the U.S. Copyright Act. The entire right, title, and interest in and to any Developed IP created by the Parties’ performance of this Agreement, including, without limitation, the software, documentation, application, source code, object code, other work product, and all modifications to the foregoing, and all portions thereof (the “Work Product”), together with all proprietary rights relating thereto, including, without limitation, all Background IP of the Client and all Developed IP in the completed Work Product as a whole and in part, are the exclusive property of Client. Under no circumstances may Company use the Developed IP, except for Company’s Background IP, for its own benefit or for the benefit of any third party. Company hereby assigns to Client all Intellectual Property that may be embodied in any Developed IP, except for Company’s Background IP, that do not meet the requirements of a work-for-hire under the U.S. Copyright Act, effective immediately as soon as such work is fixed in a tangible or electronic form or medium. Subject to the foregoing provisions of this Section 5, and independent of the U.S. Copyright Act, Company hereby assigns to Client, to the fullest extent possible under the law, all of its right, title, and interest, if any, in and to the Developed IP, including, without limitation, all patent rights and rights in inventions, copyright, moral rights, trade secret rights, and all other Intellectual Property Rights, whether and to the extent created and deemed Developed IP prior to or during the Term hereof. Notwithstanding the foregoing provisions of this Section 5(a), such Work Product and Intellectual Property defined herein above does not include for purposes of this Agreement and, specifically, without limitation, this Section 5(a), any components of source code, plugins, or other industry-standard tools utilized in the creation of the final Work Product or any third party or open-source Intellectual Property utilized by Company in performing the Services hereunder. Further, the Parties acknowledge and agree that all right, title, and interest in and to the Background IP of the Company shall remain in the Company, subject only to the limited license set forth in Section 5.3 below, if applicable.
(b) If applicable law or third party contracts prevent Company from transferring ownership of any Developed IP to Client, Company grants Client a perpetual, irrevocable, exclusive, royalty-free, fully-paid, transferable, worldwide license (with the unrestricted right to sublicense) to: (i) reproduce, prepare derivative works of, distribute, publicly perform, publicly display, and otherwise use such Developed IP; and (ii) make, use, sell, offer for sale, import, export any component of, and otherwise dispose of such Developed IP. If requested by Client, Company shall timely perform all acts reasonably necessary or desirable by Client to accomplish the assignments and other transactions specified in this Agreement.
5.3 Background IP. If Company’s Background IP is incorporated in, or is necessary to use, any Work Product or deliverable resulting from this Agreement:
(a) Company shall describe its Background IP in the applicable Digital Marketing Agreement; and
(b) Company hereby grants to Client and its affiliates a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid, worldwide license (with the unrestricted right to sublicense) to do the following: (i) reproduce, prepare derivative works of, distribute, publicly perform, publicly display, and otherwise use such Background IP in connection with the Work Product, deliverables resulting from this Agreement, and Developed IP; and (ii) make, use, sell, offer for sale, import, export any component of, and otherwise dispose of such Background IP in connection with the Work Product, deliverables resulting from this Agreement, and Developed IP.
6. Term and Termination.
6.1. Term; Termination Notice. The Term of this Agreement commences upon the execution of the signature page to the applicable Digital Marketing Agreement and shall continue for the period described as the “minimum commitment” in the Digital Marketing Agreement (the “Initial Term”). Upon expiration of the Initial Term, unless notice is received pursuant to this Section 6.1(i) below, this Agreement will automatically renew on a month-to-month basis (each a “Renewal Term” and collectively, the “Renewal Terms”) until otherwise terminated in accordance with Section 6.1 below (the Initial Term and Renewal Terms, if any, are collectively defined as the “Term”). This Agreement may only terminate upon the earliest to occur: (i) delivery of written notice by either Party of its intent to terminate the Digital Marketing Agreement to the other Party, which must be received by the other Party on or prior to sixty (60) days before the expiration of the Initial Term, or fifteen (15) days prior to the beginning of the next Renewal Term, if and as applicable, (the foregoing sixty (60) and fifteen (15) day periods each a “Termination Notice Period”); (ii) termination by the Company in accordance with Section 6.2 below; or (iii) the Parties mutually agree in writing to terminate this Agreement. If a Party terminates the Digital Marketing Agreement, whether in compliance with this Section 6.1 or otherwise, the Parties shall continue to perform the terms and conditions of this Agreement during the Termination Notice Period, including, without limitation, Client’s payment of the Compensation in accordance with Section 4 above and Company’s performance of the Services, and this Agreement shall terminate upon the expiration of such Termination Notice Period, and all rights and obligations of the Parties to one another shall cease except as otherwise set forth in Sections 6.3 and 6.4 below.
6.2. Monetary Breach. If Client fails to make a Compensation or Late Fee payment as specified in this Agreement, Company may notify Client of such failure and if Client fails to make such outstanding Compensation or Late Fee payments in full within five (5) business days from such due date, Array Digital may immediately terminate this Agreement or all or any portion of any Digital Marketing Agreement by delivering written notice of termination to the Client.
6.3. Liquidated Damages. In the event of a breach of this Agreement by Client, including, without limitation, Client’s termination of this Agreement or an applicable Digital Marketing Agreement other than in strict accordance with Section 6.1 above, Client hereby agrees and shall pay to Company, in addition to any amounts of Compensation already due and payable by Client under this Agreement as of the date of such breach, reasonable estimated liquidated damages (the “Liquidated Damages”) in an amount equal to the base Fee times the number of remaining months in the Initial Term. In clarification, and not in limitation of the foregoing, Client shall pay the difference between (i) the total Fee that would have otherwise been paid by Client to Company under this Agreement if fully performed by all Parties for the entire Initial Term, less (ii) the total amount of Fees actually paid by Client to Company for such project during the Term hereof. This provision shall also apply to any mutually agreed upon renewal or new initial term or Renewal Term, regardless of whether such agreed upon renewal or new initial term is reduced to writing. The Parties acknowledge and agree that the Liquidated Damages are intended to be liquidated damages constituting compensation, not a penalty, that damages would be impossible or very difficult to accurately estimate, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm Company will incur as a result of Client’s breach of this Agreement.
6.4. Effect of Termination. Upon termination of this Agreement for any or no reason:
Client shall immediately pay to Company all amounts of Compensation and Late Fees owed to Company pursuant to Section 4 as calculated or incurred prior to the final date of termination.
Client shall immediately pay to Company the Liquidated Damages, if and as applicable in accordance with Section 6.3.
Subject to Client’s payments of such Compensation, each Party shall immediately cease all use of and shall return to the other Party within five (5) business days all Confidential Information (as defined below) and materials of such other Party and all copies, portions, and abstracts thereof, that are in its possession or under its control, other than any materials for which Client has paid or agrees to pay. Company shall deliver to Client such portion of the Services that are complete as of the termination date.
Sections 2, 3, 4, 5, 6, 7, 8, and 9 shall survive the expiration or termination of this Agreement for any or no reason.
7. Confidentiality. In connection with this Agreement, Client may disclose, or Company may learn of or have access to, certain confidential proprietary information owned by Client or its affiliates, business partners, or clients (the “Confidential Information”). The Confidential Information includes, but is not limited to, any data or information, oral or written, that relates to Client or any of Client's existing or contemplated business activities, business and marketing strategies, technology, developments, software, software designs, methods, trade secrets, and clients. Company may use the Confidential Information of Client only for the purposes of this Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Confidential Information also includes the terms of this Agreement and the Services.
8. Indemnification. Client agrees to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, manager, members, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to Client’s violation of this Agreement or its use of the Services, including, but not limited to, any use of the Website’s content or the Company’s Services other than as expressly authorized in this Agreement.
9.1. Notice. Any notice or other communication given hereunder shall be deemed sufficient if in writing and sent by registered or certified mail, return receipt requested, overnight mail, or courier addressed to Company at the address indicated on the signature page attached to the Digital Marketing Agreement. Notices hereunder shall be deemed to have been given on the date of mailing, except notices of change of address, which shall be deemed to have been given when received.
9.2. Amendment. This Agreement may not be changed, modified, or amended except by a writing signed by the Parties, and this Agreement may not be discharged except by performance in accordance with its terms or by a writing signed by the Parties.
9.3. Binding; Entire Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and to their respective heirs, legal representatives, successors, and assigns. This Agreement and its exhibits and incorporated references stated herein sets forth the entire agreement and understanding between the Parties as to the subject matter hereof and merges and supersedes all prior discussions, agreements, and understandings of any and every nature between them.
9.4. Governing Law; Venue. This Agreement and its validity, construction, and performance shall be governed by, construed under, and enforceable in all respects in accordance with the laws of the Commonwealth of Virginia, without reference to its conflicts of law principles. All Parties hereto submit to both the exclusive jurisdiction of the state and federal courts located in the Commonwealth of Virginia and the exclusive venue of the state and federal courts located in Norfolk, Virginia.
9.5. Counterparts; Authority. This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together will constitute one (1) instrument, binding upon all Parties hereto, notwithstanding that all of such Parties may not have executed the same counterpart. Client and its applicable signatories hereto hereby represent and warrant to Company that it and he or she has full legal authority and capacity to execute and perform this Agreement, as may be amended or supplemented from time to time.
9.6. Default; Attorneys’ Fees. In the event of a default under this Agreement, Client shall reimburse the Company for all costs and expenses reasonably related to and incurred by the Company in connection with the default and Company’s enforcement of its rights hereunder, including without limitation, attorneys’ fees, fees and costs.
9.7. Waiver; Severability. The waiver by any Party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach by any Party. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to the extent applicable, be invalid or unenforceable, the remainder of this Agreement and the application of such term of provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
9.8. Further Assurances. Each Party agrees that it will execute and deliver such further instruments, provide all information, and take or forbear such further acts as may be reasonably necessary to carry out the intent and purpose of this Agreement.
9.9. No Third Party Beneficiaries. Nothing contained herein is intended, nor shall it be construed, to confer any rights or benefits upon any person (including, but not limited to, any employee, agent, contractor, officer, shareholder, member, manager, or former agent of the Parties) other than the Parties, and no other person shall have any rights or remedies under this Agreement.
9.10. Force Majeure. The Parties shall not be liable or responsible, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Parties, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of one hundred twenty (120) days, the Parties shall be entitled to give notice in writing to the other to terminate this Agreement.
9.11. Promotion. The Parties may reference the other Party as a client, provided, however, that neither Party may use the other Party’s name, logos, or trademarks in any promotional material, whether printed, written, or electronically delivered, without the express written or electronic consent of the other Party.
9.12 Assignment. The Company may freely assign its interests, rights, and delegate its duties provided for under this Agreement to any third party upon providing written notice of such assignment and delegation to Client. This Agreement shall inure to the benefit of and be binding upon the Parties, their respective heirs, administrators, legal representative, successors, and permitted assignees and delegates.
9.13. Guarantee. If applicable in accordance with the terms of the applicable Digital Marketing Agreement, the Parties hereby acknowledge and agree a material part of the consideration for Company entering into this Agreement is guarantor’s (the “Guarantor”) agreement to guaranty (the “Guaranty”) Client’s performance of the terms and conditions of this Agreement. If applicable, such Guaranty can be found in the applicable Digital Marketing Agreement, and the terms and conditions of such Guaranty are hereby incorporated herein by reference. The terms and conditions of the Guaranty, and Guarantor’s duties thereunder, shall not affect Client’s duties and obligations under this Agreement, and the Guaranty is further subject at all times to the terms and conditions of this Agreement.