These Master Terms & Conditions (“Terms”): (a) are incorporated into, and are material terms and conditions of, each service agreement, work order, proposal, and statement of work (each, a “Service Agreement”) entered into by Black Swan Geeks LLC, (“Black Swan Geeks LLC”), and its customer (“Customer” or “you”); and (b) apply to all services provided to Customer by Black Swan Geeks LLC (collectively, the “Services”). Any capitalized terms not defined herein shall have the meaning ascribed in the applicable Service Agreement. In the event of any conflict between these Terms and a Service Agreement, the terms of the Service Agreement shall prevail. Some of these Terms, where specifically indicated, are only applicable to certain types of Services.
1. SCOPE OF SERVICES
Black Swan Geeks LLC shall perform the Services described in the applicable Service Agreement (the “Services”) in accordance with the terms of such Service Agreement. Sometimes the scope of Services in a Service Agreement needs to change midstream. In that case, the parties will negotiate concerning a change order in good faith. Unless otherwise agreed or specified in the applicable Service Agreement or the applicable change order, Customer shall have seven (7) days from receipt of a proposed change order to accept it, and, if not accepted in that timeframe, a new change order will be required. No change order shall be binding upon either party unless signed by both parties. Upon execution by both parties, a signed change order shall amend the original Service Agreement and become a part thereof.
2. TYPES OF SERVICES
Black Swan Geeks LLC offers a number of different types of services, including website design and development, management of hosting of websites and applications, search engine optimization and marketing consultation, pay per click marketing consultation, social media marketing consultation, analytics consultation and copywriting.
2.1. Website Design & Development Specific Terms
For website design and development work, Customer will be responsible for providing feedback, direction, approvals and content (such as text and images) in a reasonably timely fashion. Unless otherwise expressly agreed in the applicable Service Agreement, project-based (as opposed to recurring) Service Agreements involving website design and/or development shall automatically expire on the date that is one hundred eighty (180) days after the effective date of the Service Agreement (the “Project Completion Date”), upon which Services and associated deliverables shall be deemed accepted. Unless otherwise agreed by Black Swan Geeks LLC, after the Project Completion Date, should Customer desire for Black Swan Geeks LLC to provide further Services, they will be provided at Black Swan Geeks LLC’s applicable hourly rate(s), and Black Swan Geeks LLC may require advance payment(s) or deposit(s).
2.2 Management of Hosting
Black Swan Geeks LLC acts as a liaison and manages the relationship between Customer’s website and a hosting company (such as Amazon Web Services or Rackspace, by way of example only). The Services are subject to both these Terms, Black Swan Geeks LLC’s Acceptable Use Policy (the “AUP”, as amended from time to time, and incorporated herein by reference), and the terms of the applicable hosting provider. Customer understands that bandwidth speed may vary, and that (unless explicitly provided otherwise in the applicable Service Agreement) Black Swan Geeks LLC is not responsible for the networks or facilities of third parties which may be necessary to hosting and functionality of a site.
2.3 Service Level Agreement (SLA) for Hosting
Black Swan Geeks LLC and its service vendors and subcontractors shall undertake commercially reasonable measures to protect Customer’s Website(s) and email against unscheduled outages. However, unplanned service interruptions do happen from time to time, and such interruption shall not constitute a default by Black Swan Geeks LLC under the Service Agreement, though Customer may receive a credit allowance upon the terms and conditions set forth herein. A credit allowance equal to Black Swan Geeks LLC’s then current fee for one month of web hosting service will be given, upon Customer’s written request made within thirty (30) days of the service interruption, when there is an unplanned service interruption, as acknowledged by Black Swan Geeks LLC or its vendors or subcontractors, that lasts more than thirty (30) minutes. Customer may only receive one credit allowance during any calendar month, even if multiple unplanned service interruptions should occur. Customer shall receive no credit allowance for any service interruption lasting thirty (30) minutes or less. No Credit Allowance will be issued for planned service interruptions scheduled by Black Swan Geeks LLC or Black Swan Geeks LLC’s hosting vendors. Black Swan Geeks LLC’s grant of a credit allowance shall be the Customer’s sole and exclusive remedy for unplanned service interruptions and the associated failure of Black Swan Geeks LLC or its vendors or subcontractors to provide shared web hosting services.
2.4 Third Party Services
Customer acknowledges that Black Swan Geeks LLC engages and incorporates the services of a number of third party vendors (“Third Party Vendors”) to provide additional services to the Customer in connection with website hosting. Customer acknowledges and agrees that use of any services of Third Party Vendors is governed by the terms and conditions of such Third Party Vendors. Customer further understands and acknowledges that if any Recurring Service with Black Swan Geeks LLC is canceled, Customer may not be able to transfer third party services without entering into a separate agreement with the Third Party Vendor(s), and/or making significant changes to Customer’s website design to enable it to function properly.
3. FEES
3.1 Service Fees
The fees for Services shall be set forth in the applicable Service Agreement as amended by any change order(s), and shall be billed and paid in United States (U.S.) Dollars. All installment payments made to Black Swan Geeks LLC are non-refundable.
3.2 Recurring Charges
Unless otherwise specified in the applicable Service Agreement: (a) recurring charges are due on the first day of each month following the launch of Customer’s website; (b) fees for recurring Services must be paid prior to the start of the service period; (c) fees for recurring Services are subject to change at any time in Black Swan Geeks LLC’s sole discretion upon ten (10) days prior notice to Customer by email; (d) invoices and sales receipts shall be sent via email; (e) Customer shall have thirty (30) days in which to dispute any invoice or sales receipt, after which time the invoice or sales receipt shall be deemed correct.
3.2.1. Credit Card Authorization.
If Customer provides a “Credit Card Authorization Form”, Customer authorizes Black Swan Geeks LLC to charge Customer’s credit card for all amounts due to Black Swan Geeks LLC. If Black Swan Geeks LLC is unable, for any reason, to effect payment via Customer’s credit card, Black Swan Geeks LLC will notify Customer via email, and Customer will have five (5) days to provide a valid credit card before Services will be disabled and/or discontinued.
3.3. NSF Checks
If any check given by Customer to Black Swan Geeks LLC is returned for insufficient funds, Customer will be liable to Black Swan Geeks LLC for a returned check fee in the amount of Thirty-Five Dollars ($35.00), and may be required to pay for future services with certified funds.
3.4. Taxes
Customer shall pay all applicable sales, use, gross receipts, excise, access, value added, and other local, state and Federal taxes or charges imposed on the provision or use of the Services.
3.5. Late Payment
Payments not received within fifteen (15) days of invoice or other due date specified in the Service Agreement will be considered late and will incur and accrue interest from the due date at the rate of one and one-half percent (1.5%) per month or the maximum legal rate, whichever is lower.
4. EQUIPMENT
If additional equipment, including, but not limited to, monitors, computers, software or other devices, is required by Customer to use the Services, Customer shall be solely responsible for acquiring and maintaining such equipment.
5. RESALE OF SERVICE
Customer may not resell any portion of the Services to any other party without prior written permission from Black Swan Geeks LLC, which may be granted or withheld in Black Swan Geeks LLC’s sole discretion.
6. RIGHTS
6.1 Work Product.
“Work Product” means all original creations prepared by Black Swan Geeks LLC for Customer in connection with the Services. Upon full and final payment for the Services rendered under a Service Agreement, Black Swan Geeks LLC assigns to Customer all right, title and interest in and to the Work Product produced for Customer under such Service Agreement.
6.2. Elements.
“Elements” means (a) Black Swan Geeks LLC’s technology and intellectual property existing as of the effective date of the applicable Service Agreement, including without limitation its web authoring tools, designs, algorithms, software (in source and object forms), user interface designs, architecture, scripts, objects, methods, practices and documentation and any related intellectual property rights existing at or after the effective date, (b) any derivatives, improvements, enhancements or extensions of the foregoing, even if such derivation, improvement, enhancement or extension is made during the performance of the Services, and (c) new software tools of general application (as opposed to specific to the particular Work Product associated with such tools) created in connection with the Services. All right, title, and interest in the Elements shall remain the sole and exclusive property of Black Swan Geeks LLC. Upon full and final payment for the Services rendered under a Service Agreement, Black Swan Geeks LLC grants Customer a royalty-free, nonexclusive, irrevocable, perpetual worldwide license in and to the Elements provided under such Service Agreement, for use in connection with the Work Product developed thereunder.
6.3 Third-Party Materials.
“Third-Party Materials” means any content, software, or other material that is owned by a third party, such as stock images, themes, and graphics. Such Third-Party Materials are subject to the applicable third party terms and licenses, and may only be used as permitted by such terms and licenses.
7. DEFAULT
If Customer fails to comply with any material provision of a Service Agreement or these Terms, including, but not limited to, failure to make payment as specified, then Black Swan Geeks LLC may elect to suspend all or any part of the Services upon notice to Customer, and to terminate the Service Agreement if the breach or default is not cured within fifteen (15) days. Additional fees for reconnection of any disconnected services may be required.
8. EARLY TERMINATION
Black Swan Geeks LLC may terminate a Service Agreement (and Services), with ten (10) days prior written notice to Customer, if it determines Customer’s demands or requirements to be unreasonable or outside of the scope of the Services. Customer may terminate any or all Recurring Services before the end of the term selected by Customer in the Service Agreement with thirty (30) days prior written notice to Black Swan Geeks LLC. Upon the termination of the Service Agreement for any reason, Black Swan Geeks LLC may (but is not required to) delete any of Customer’s archived data.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANYLOST PROFITS, WHETHER OR NOT FORESEEABLE AND REGARDLESS OF THE NATURE OF THE CLAIM. IN NO EVENT SHALL Black Swan Geeks LLC’S AGGREGATE LIABILITY RELATING TO OR ARISING OUT OF THE SERVICES EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO Black Swan Geeks LLC FOR THE SERVICES.
10. DISCLAIMER OF WARRANTIES
EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH HEREIN, Black Swan Geeks LLC HEREBY DISCLAIMS ALL WARRANTIES OF EVERY NATURE, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. Black Swan Geeks LLC DOES NOT WARRANT THAT THE SERVICES OR SOFTWARE SHALL BE ERROR-FREE OR WITHOUT INTERRUPTION. Black Swan Geeks LLC MAKES NO WARRANTY AS TO TRANSMISSION OR SPEEDS OF ANY NETWORKS. Black Swan Geeks LLC MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND HEREBY EXPRESSLY DISCLAIMS ANY SUCH WARRANTY, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND THAT WORDPRESS THEMES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED. Black Swan Geeks LLC DOES NOT GUARANTEE THAT THEMES WILL WORK IN ALL BROWSERS, NOT DOES Black Swan Geeks LLC GUARANTEE THAT ITS THEMES WILL BE FUNCTIONAL IN ALL VERSIONS OF WORDPRESS, OR THAT THEY WILL BE COMPATIBLE WITH ANY THIRD-PARTY PLUGINS, SCRIPTS OR APPLICATIONS.
11. CUSTOMER REPRESENTATIONS
Customer represents and warrants to Black Swan Geeks LLC that any written copy, graphics, photos, designs, video, data, audio files, music, specifications, software, trademarks, domains or other materials furnished to Black Swan Geeks LLC for use with or inclusion in any Black Swan Geeks LLC work product or Service (“Customer Content”) are either owned by Customer, or Customer has permission from the rightful owner to use the same.
12. INDEMNITY
Customer shall indemnify and hold Black Swan Geeks LLC and its respective affiliates, subcontractors, employees or agents harmless (including payment of reasonable attorney’s fees and other defense costs) from and against any claim, actions or demands relating to or arising out of Customer’s use of the Services, including, without limitation (i) any content or software displayed, distributed or otherwise disseminated by the Customer, its employees, or users of the Services, (ii) any claim that Customer’s use of the Services, including the registration and maintenance of Customer’s selected domain name(s), infringes on the patent, copyright, trademark or other intellectual property rights of any third party; (iii) any malicious act or act in violation of any laws committed by Customer, its employees or users using the Services; and/or (iv) violation by Customer, its employees or authorized users of these Terms or the AUP.
13. HEADINGS
The section headings used herein are for convenience of reference only and do not form a part of these Terms and Conditions, and no construction or inference shall be derived therefrom.
14. FORCE MAJEURE
Neither party will be liable for, or will be considered to be in breach of or default under these Terms or any Service Agreement on account of, any delay or failure to perform as a result of any cause(s) or condition(s) that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.
15. CHOICE OF LAW; EXCLUSIVE JURISDICTION AND VENUE; ATTORNEY’S FEES
This agreement shall be construed and enforced according to the laws of Swedesboro. Any action in regard to the Service Agreement or arising out of its terms and conditions shall be instituted and litigated in the State of Swedesboro or federal courts located in Glen Burnie County, Swedesboro, and in no other, and the parties submit to the exclusive jurisdiction and venue of such courts. The substantially prevailing party in any action to enforce or interpret any Service Agreement and/or these Terms shall be entitled to its reasonably attorney’s fees, expert’s fees and costs.
16. AGREEMENT BINDING ON SUCCESSORS
Customer may not assign any Service Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Black Swan Geeks LLC. Black Swan Geeks LLC reserves the right to assign its rights hereunder to any party and to delegate its obligations hereunder to subcontractors. Subject to the foregoing, each Service Agreement and these Terms shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, successors and permitted assigns.
17. WAIVER
The failure of either party to enforce at any time or for any period of time the terms of any Service Agreement and/or these Terms shall not be construed as a waiver of such terms or the right of such party thereafter to enforce such terms. Any waiver by either party must be in writing signed by such party. No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of any Service Agreement or these Terms.
18. SEVERABILITY
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render such provision, term or clause enforceable, or, if incapable of such modification, shall be severed from the applicable Service Agreement or these Terms, as applicable, and such invalidity shall not affect the validity or operation of any other term, clause or provision contained in the Service Agreement or these Terms.
19. ENTIRE AGREEMENT
These Terms and the Service Agreements constitute the entire understanding of the parties, revoke and supersede all prior agreements between them, and are intended as a final expression of their agreement. No modification or amendment to these Terms or a Service Agreement shall be effective unless in a writing signed by both parties that expressly states an intent to modify or amend and refers to the Service Agreement and/or these Terms, as applicable.