GENERAL WEBSITE DEVELOPMENT, WEBSITE SERVICES, AND MOBILE APPLICATION TERMS OF SERVICE
Last Updated: March 26th, 2021
Last Reviewed: March 26th, 2021
Please note that to maintain the security of your website, we do not recommend allowing third parties access.
The pricing and agreement apply to the scope of work outlined in this document. If the project goals change and the scope of work changes (page count increases, custom features added, etc.), a new quote and scope of work or amendment to this agreement will be required in order to proceed with the project. This new scope of work or amendment may come with additional fees depending on changes.
This Agreement is by and between AMPLIFIED DIGITAL, LLC (“Agency”) and the “Client” identified below, and is effective upon the date of Client’s signature (the “Effective Date”).
This Agreement is governed by the General Terms of Service posted as of the Effective Date at https://adstlstage.wpengine.com/website-app-terms/, which are incorporated by reference. In the case of any inconsistency, the General Terms of Service will govern.
WHEREAS, Client wishes to procure from Agency the website design, development, app development, hosting, and/or maintenance services described in the Scope and Quote accepted by Client, and Agency wishes to provide such services to Client, each on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1 Client engages Agency to provide the services described in the Scope and Quote accepted by Client, which is incorporated into this Agreement by reference.
1.2 Client and Agency will each identify a main point of contact (or project manager) for day-to-day communications and decision-making. The project manager must have the required authority and qualifications to perform as project manager. The project manager may be replaced at any time by providing the other party written notice.
1.3 Agency’s ability to provide the services requires the full and timely cooperation of Client, as well as accurate and complete information. Accordingly, Client will:
(a) provide Agency with access to, and use of, all information, data and documentation required by Agency for the performance of its obligations under this Agreement; and
(b) ensure its main point of contact / project manager timely communicates with Agency.
- SITE CONTENT
2.1 Agency will populate, and during any applicable Maintenance Term update, the Site with content supplied by or through Client (the “Client Materials”).
2.2 Client is responsible for all Client Materials and will ensure the Client Materials do not violate or infringe any applicable laws, regulations or third party rights, including but not limited to the provision of material that is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous, in breach of any third party’s rights (including Intellectual Property Rights as defined below), or results in the unlawful advertisement, solicitation, offering for sale, or sale of controlled substances or other unlawful goods or services (“Inappropriate Content”). Any content that violates the terms of service, acceptable use policies, or other applicable guidelines of any third-party service that will host or make the Site available to end-users will be considered Inappropriate Content. Agency may remove or disable access to content it reasonably suspects to be Inappropriate Content. Agency will notify Client if it becomes aware of any allegation that any content on the Site may be Inappropriate Content.
2.3 Agency may incorporate into the Site certain Pre-Existing Materials. “Pre-Existing Materials” means all content, including documents, data, know-how, ideas, specifications, and software code that (a) were developed by Agency prior to the Effective Date or (b) are utilized by Agency to service other clients or otherwise for purposes other than its performance under this Agreement.
2.4 The Site may include and require the use of Third-Party Materials and Open Source Components. “Third-Party Materials” means content in any form or media, including but not limited to documents, data, know-how, ideas, specifications, plugins, and software code, in which any person or entity other than Client or Agency owns any Intellectual Property Rights (as defined below), but specifically excluding Open Source Components. “Open Source Components” means any software components that are subject to any open source copyright license agreement, including but not limited to any GNU General Public License or GNU Library or Lesser Public License, or other license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative.
2.5 If Client has engaged Agency for the design, development, and hosting of the Site, Agency will secure, at its cost and expense, all rights, licenses, consents, and approvals necessary for Client to use, during the term of this Agreement and any Maintenance Term, all Third-Party Materials and Open Source Components incorporated into the Site. By entering this Agreement, Client acknowledges, agrees, and authorizes Agency to bind Client to all licenses and restrictions governing the Third-Party Materials and Open Source Components, and pay all recurring costs and fees to Third-Party Providers as described in the Scope and Quote. This Section 2.7 will not apply to any Client Materials, including any Third-Party Materials or Open Source Components requested or engaged by Client, or as otherwise provided in the Scope and Quote.
2.6 If Client has engaged Agency for the design and development of the Site but not for the hosting of the Site, Client will secure, at its cost and expense, all rights, licenses, consents, and approvals necessary for Client to use all Third-Party Materials and Open Source Components incorporated into the Site during the term of this Agreement. Client authorizes Agency to bind Client to all licenses and restrictions governing the Third-Party Materials and Open Source Components, and to pass through all associated fees and charges.
2.7 For services utilizing the Word Press platform, the terms set forth in https://wordpress.com/tos/ (as modified from time-to-time) are incorporated by reference. For services utilizing the Shopify platform, the terms set forth at https://www.shopify.com/legal/terms (as modified from time-to-time) are incorporated by reference.
2.8 If the Scope and Quote includes ADA Compliance, website design will include reasonable accessibility consistent with industry practices at the time of service. Agency shall not have any duty or obligation to upgrade or maintain accessibility, and have no responsibility for Client content or alterations of the website made after launch/delivery.
- SITE MAINTENANCE
3.1 Agency will provide the maintenance services, if any, described in the Scope and Quote accepted by Client and incorporated into this Agreement (the “Maintenance Services”) for the period of time described (the “Maintenance Term”). Unless otherwise provided in the Scope and Quote, all Maintenance Services are provided on a per-time basis at the then-existing rates posted by Agency.
3.2 Agency will assist Client with changes to the Site as requested under the Maintenance Services. Agency may provide tools and resources for Client to directly alter the content or nature of the Site. Agency is not responsible for any changes, additions, or subtractions made by Client. If Client alters the Site in a manner that negatively impacts the Site’s design or functionality, Agency may assist restoration of the Site on a per-time basis at its then-existing rates.
3.3 Agency will provide scheduled, off-site backups of the Site if included in the Maintenance Services. Agency does not warrant that all backups will be complete, accessible, or free from error and Client accepts all risk of loss. Agency does not independently backup Client Materials and Client accepts all responsibility for Client Materials.
3.4 Agency will provide regularly security scans of the Site if included in the Maintenance Services. Agency uses commercially-reasonable efforts to identify, correct, and notify Client of any security threats. Agency does not warrant the Site will be free from security vulnerabilities or incidents and Client assumes the risk of all loss due to security incidents.
3.5 Agency will provide Client with reports concerning traffic on the Site if included in the Maintenance Services. All provided data is aggregate data and is not intended to constitute personally identifiable data concerning any user of the Site.
- CHARGES AND PAYMENT
4.1 Client will pay Agency properly invoiced fees (“Fees”) as set forth in the Scope and Quote.
4.2 Agency will issue invoices to Client, and payment will be due net thirty (30) days from the invoice date. Failure to secure final approval from Client on Site designs will not be considered a reason to delay payment beyond the due date. Interest will accrue at the rate of 10% per annum for any late payment. In addition to the amount owed for applicable interest or late charges, Client agrees to pay Agency for all expenses incurred by Agency to collect any amounts payable under this Agreement, including costs of collection, court costs and attorney’s fees.
4.3 All Fees are exclusive of taxes. Client will be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder.
- TERM AND TERMINATION
5.1 This Agreement begins on the Effective Date and continues while there is any effective Scope and Quote in place between Agency and Client, provided that the terms of this Agreement specific to design, development, maintenance, or hosting services will only apply during the period Agency is obligated to provide such services.
5.2 If Client has engaged Agency for design and development of the Site, Client will be deemed to have accepted the completed Site upon the occurrence of any of the following events: (i) Client affirmatively states approval of the Site in writing; (ii) Client puts the Site into use or otherwise uses any part of the Site for any revenue-earning purposes or to provide any services to third parties; or (iii) the expiration of thirty (30) days after Agency delivers Site to Client.
5.3 Either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
- the other party fails to pay any amount due under this Agreement on the due date;
- the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides written notice of such breach;
- the other party becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; makes or seeks to make a general assignment for the benefit of its creditors; or applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
- in the opinion of Agency, the credit of Client is or may be impaired.
5.4 If this Agreement terminates early, Client will remain obligated to pay Fees for all services rendered before the effective date of termination.
5.5 On expiration or termination of this Agreement, Agency will promptly return all Client Materials to Client, and will provide an electronic copy of the Site, including all database files and all content on the Site that Agency may deliver pursuant to applicable licenses. Client agrees to promptly review all provided materials and, within seven (7) calendar days of delivery of such materials (the “Review Period”), notify Agency of any errors, concerns, or additional requests. Agency will assist Client with any questions, errors, or concerns raised during the Review Period on a per-time basis at Agency’s then-existing rates. Upon the earlier of Client’s affirmative approval or the expiration of the Review Period, the delivery will be deemed complete and Agency will have no further obligation to assist Client with requests for Site materials.
5.6 Agency will notify Client of any Third-Party Materials or Open Source Components that cannot be released to Client due to licensing or other restrictions. Client acknowledges and agrees the removal of Third-Party Materials and Open Source Components from the Site may materially affect the form and functionality of the delivered Site, and Client bears all responsibility, costs and expense for directly securing the rights, licenses, consents, and approvals necessary to replace the Third-Party Materials or Open Source Components with identical or functionally similar components.
- ENTIRE AGREEMENT
6.1 This Agreement, together with the General Terms of Service and Scope and Quote incorporated by reference, constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
6.2 Each party agrees that it will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
GENERAL TERMS OF SERVICE
Last Updated: June 6, 2020
Last Reviewed: June 6, 2020
These General Terms of Service govern delivery of services by Amplified Digital LLC (the “Agency”) to you (the “Client”), as set forth in any Website Development Agreement, App Development Agreement, or other Agreement signed by you and delivered to Agency. Capitalized terms not defined below have the meaning ascribed to them in the applicable Agreement.
INTELLECTUAL PROPERTY RIGHTS
Except as set forth below, Client is and will be the sole and exclusive owner of all right, title, and interest in and to the delivered Site or App, including all Intellectual Property Rights therein. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. The parties agree that:
Agency shall create all new deliverable work product as work made for hire as defined in Section 101 of the Copyright Act of 1976.
To the extent any new deliverable work product does not qualify as work made for hire, Agency shall, and hereby does, immediately on its creation, assign, transfer, and otherwise convey to Client, irrevocably and in perpetuity, throughout the universe, all right, title, and interest in and to such deliverable work product, including all Intellectual Property Rights therein.
Client grants Agency the limited, royalty-free, non-exclusive right and license to Client Materials solely as necessary to incorporate Client Materials into the delivered content or otherwise to provide services to Client. Client and its licensors are, and will remain, the sole and exclusive owners of all right, title, and interest in and to Client Materials, including all Intellectual Property Rights therein.
Agency grants to Client the limited, royalty-free, non-exclusive right and license to use the Pre-Existing Materials as they are incorporated into the delivered content. Agency is and will remain the sole and exclusive owner of all right, title, and interest in and to the Pre-Existing Materials, including all Intellectual Property Rights therein.
All right, title, and interest in and to Third-Party Materials and Open Source Components will remain with their respective owners, subject to any express licenses or sublicenses granted to Client pursuant to the Agreement or any applicable Open Source Licenses.
All rights, title, and interest to any materials, concepts and techniques developed by Agency, alone or in conjunction with Client or its employees (the “Improvements”), shall belong to Agency. Agency hereby grants to Client a worldwide, royalty-free, non-sublicensable, nonexclusive license to use the Improvements to the extent incorporated into or used in association with the delivered content. Customer shall not sell, disclose, or sublicense the Improvements without the prior written approval of Agency.
DATA PROTECTION AND PRIVACY POLICIES
Client is solely responsible for compliance with all Heightened Cybersecurity Requirements governing the collection, storage, and use of any information concerning visitors who view or interact with the Site. “Heightened Cybersecurity Requirements” means any laws, regulations, codes, guidance from regulatory and advisory bodies (whether mandatory or not), international and national standards, which are applicable to Client relating to security of network and information systems and security breach and incident reporting requirements. Agency shall make commercially reasonable efforts to comply with any direction by Client necessary to comply with Heightened Cybersecurity Requirements applicable to Client.
Each party represents and warrants to the other party that:
- it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws and regulations of its jurisdiction of incorporation, organization, or chartering;
- it has the full right, power, and authority to enter into the Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder;
- the execution of the Agreement by its representative has been duly authorized by all necessary corporate action of the party; and
- when executed and delivered by both parties, the Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
Agency warrants to Client that:
- it will perform the services in a professional and workmanlike manner in accordance with commercially reasonable industry standards for similar services and will devote adequate resources to meet its obligations under the Agreement; and
- any Site or App designed and developed by Agency will perform substantially in accordance with the specifications described in the Scope and Quote upon delivery and during any Maintenance Term. If the Site or App does not so perform, Agency shall, for no additional charge, carry out work reasonably necessary in order to ensure that the Site substantially complies with the Scope and Quote. This warranty shall not apply to the extent that any failure is caused by any Client Materials, any breach of the Agreement by Client, or any change, addition, or subtraction to the Site or App made by or through Client or at Client’s request.
Client warrants to Agency that:
- Client owns or has licensed all rights necessary for use of Client Materials on the Site or App, and Client Materials will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or other rights of any third party; and
The Agreement and these General Terms of Service set out the full extent of Agency’s obligations to Client. All conditions, warranties or other terms concerning the services which might otherwise be implied into the Agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, AGENCY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT. AGENCY DOES NOT WARRANT THAT THE CLIENT’S USE OF THE SERVICES OR THE SITE OR APP WILL BE UNINTERRUPTED OR ERROR-FREE; THE SERVICES OR THE SITE OR APP WILL BE FREE FROM VULNERABILITIES; OR THE SERVICES OR THE SITE OR APP WILL COMPLY WITH ANY HEIGHTENED CYBERSECURITY REQUIREMENTS. A “VULNERABILITY” SHALL MEAN ANY WEAKNESS FOUND IN SOFTWARE AND HARDWARE COMPONENTS THAT WHEN EXPLOITED, RESULTS IN A NEGATIVE IMPACT TO THE CONFIDENTIALITY, INTEGRITY, OR AVAILABILITY, OF THE SITE.
LIMITATION OF LIABILITY
EXCEPT AS OTHERWISE PROVIDED HEREIN, IN NO EVENT WILL AGENCY BE LIABLE UNDER THE AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
EXCEPT AS OTHERWISE PROVIDED HEREIN, IN NO EVENT WILL AGENCY’S LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO AGENCY PURSUANT TO THE SCOPE AND QUOTE AND THE AGREEMENT.
The exclusions and limitations set forth above shall not apply to a party’s obligations under INDEMNIFICATION, to a party’s gross negligence or willful misconduct, or to Client’s warranties set forth above.
Client shall indemnify, defend, and hold harmless Agency, Agency’s parent company Lee Enterprises, Incorporated, and each of their officers, directors, employees, agents, successors, and assigns (each, an “Indemnitee”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and court costs, the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, that are incurred by an Indemnitee, arising out of or resulting from any claim, suit, action, or proceeding alleging:
- Client Materials constitute Inappropriate Content;
- Client Materials infringe the rights of a third party, including the third party’s Intellectual Property Rights;
- The Site or App content gives rise to claims for libel, privacy invasion, unfair competition, defamation, misuse of publicity rights, copyright infringement, dilution or trademark infringement;
- Facts or circumstances that, if true, would constitute Client’s breach of any representation, warranty, covenant, or obligation of Client under the Agreement; or
- Client modification or alteration of any Site or App.
Agency will promptly notify Client in writing of any action for which it is entitled to be indemnified and reasonably cooperate with Client at Client’s sole cost and expense. Client shall immediately take control of the defense and investigation of such action and shall employ counsel of its choice to handle and defend the same, at Client’s sole cost and expense. Client shall not settle any action in a manner that adversely affects the rights of Agency without Agency’s prior written consent. Agency’s failure to perform any obligations under this section will not relieve Client of its indemnification obligations under this section except to the extent that Client can demonstrate it has been materially prejudiced as a result of such failure. Agency may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
Neither party will be liable or responsible to the other party, or be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement, when and to the extent such failure or delay is caused by any acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes, or blockades in effect on or after the date of the Agreement, national or regional emergency, or national or regional shortage of adequate power or telecommunications or transportation facilities (each of the foregoing, a “Force Majeure Event”), in each case, provided that (i) such event is outside the reasonable control of the affected party; (ii) the affected party provides notice to the other party, stating the period of time the occurrence is expected to continue; and (iii) the affected party uses diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
All notices, requests, consents, claims, demands, waivers, and other communications under the Agreement have binding legal effect only if in writing and addressed to a party as follows, or to such other address or such other person that such party may designate from time to time:
If to Agency: Amplified Digital Agency, email@example.com; Attention: Amanda McGinnis
If to Client: At the Address, Facsimile Number, or Email Address identified at the end of the applicable Agreement
Notices will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email with confirmation of transmission during the addressee’s normal business hours; (d) on the next business day, if sent by facsimile or email with confirmation of transmission after the addressee’s normal business hours; and (e) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
Neither party may assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under the Agreement, whether voluntarily, involuntarily, by operation of law, or otherwise, without the other party’s prior written consent, which consent shall not be unreasonably withheld or delayed. Any purported assignment, delegation, or transfer in violation of this section is void. Notwithstanding the foregoing, Agency may assign the Agreement to a third party without consent in connection with a sale, change of control, merger, acquisition, sale of all or substantially all assets or other similar transaction by Agency.
The Agreement is for the sole benefit of the parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of the Agreement.
RELATIONSHIP OF THE PARTIES
The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and, unless otherwise stated herein, neither party shall have authority to contract for or bind the other party in any manner whatsoever.
AMENDMENTS AND WAIVER
No amendment to or modification of the Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify the Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
GOVERNING LAW AND SUBMISSION TO JURISDICTION
The Agreement is governed by and construed in accordance with the internal Laws of the State of Missouri without giving effect to any choice or conflict of law provision or rule that would require or permit the application of laws of any jurisdiction other than those of the State of Missouri. Any legal suit, action, or proceeding arising out of or related to the Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Missouri in each case located in the city of St. Louis, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding.
EXECUTION IN COUNTERPARTS
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.