Terms of Service
This Agreement constitutes an order for software development and management as agreed to by both parties: Hofbauer Consulting (“Hofbauer Consulting” or “Publisher”) and The Client. The Publisher and The Client agree to be bound by the following terms and conditions:
- Statement of Work: Hofbauer Consulting will provide Technical Services set forth in the Project Scope Document. All Services will be explained by Hofbauer Consulting to The Client before The Client’s decision to avail of such Services. Any additional Services requested by The Client during the duration of the contract shall be mutually agreed in writing and may involve additional invoicing. All Services will be provided by Hofbauer Consulting within the timeframes specified in the Project Scope Document.
- Rates: All rates for the Services are set forth in the Project Scope Document. These are subject to change should the scope of the project change. Any additional work requested beyond the scope of the original agreement will be billed in increments of pre-paid $1,000 retainers and applied to our hourly rates as outlined in the Project Scope Document. Our rates are subject to change and all changes must be disclosed to the client with proper written 60-day notice.
- Content Materials: The Client will be responsible for providing Hofbauer Consulting with all content (the “Content”) to be used by Hofbauer Consulting in its performance of Technical Services for The Client as agreed in this contract.
- Payment Due Terms: Payment amounts and payment due dates are set forth in the Financial Terms in the Project Scope Document. All payments are due to Hofbauer Consulting Net-15 days from payment date, unless otherwise specified.
- Payment Method Terms: The Client agrees to keep a payment method on file for all recurring payments and services. The Client authorizes Hofbauer Consulting to charge the method of payment on file automatically on the invoice due date. Accepted payment methods are: most major credit cards, debit cards, or direct bank debit via online ACH. Failure to provide a valid payment method on file for more than 60 days will result in suspension of all services.
- Late Payment Penalties: There will be a 10% fee added to all late payments of more than 45 days. 3 missed payments will result in temporary suspension of hosting and website accessibility. 6 or more delinquent payments in a 12-month period may result in termination of this agreement and the hosting arrangements. If the Client is 120 or more days delinquent on payments, we will suspend the client’s website. The Client will be notified multiple times of delinquent payments prior to deletion.
- Hosting Terms: The initial term of hosting is 12 months. Thereafter, hosting will be provided on a month-to-month basis, terminable by The Client for convenience and without penalty upon 60 days notice. In the event of hosting services cancellation, all content must be transferred to another host by the final date of the hosting. Any labor required for that transition is not covered by this agreement. Accounts must be paid in full to receive a copy of website files when transferring to a new host.
- Platform License: Hofbauer Consulting is willing to provide a license to all custom platform features built during this engagement for a yearly fee should the client choose to transfer to another hosting provider after the initial hosting terms are met.
- Third-Party Providers: The Client acknowledges that Hofbauer Consulting is engaged in contracts with third-party providers of both software and services. Issues with any such third-party provider will be the sole responsibility of Hofbauer Consulting and will be resolved directly between Hofbauer Consulting and the third-party provider.
- 3rd Party Provider Terms: The Client explicitly agrees to all required and implemented 3rd-party providers’ terms, and The Client’s agreement to these terms will be granted to each applicable 3rd-party providers by Hofbauer Consulting as a proxy. The foregoing notwithstanding, in no event with such 3rd-party provider terms: (a) grant rights to any third party to the Content provided by The Client; or (b) subject The Client to liability or direct financial obligation to any 3rd-party unless specifically agreed by The Client in a separate writing.
- Copyright Ownership: All Content generated or provided by the parties hereunder with respect to the Project Scope will remain the sole intellectual property of The Client. For off the shelf, third party software, The Client’s future use of such software is limited by any and all applicable 3rd party license agreements.
- Confidential Information: The parties acknowledge that under this Contract, confidential information may be disclosed and transferred between the parties. The parties further agree not to disclose any and all confidential information acquired under this Contract. Confidential Information includes, and is not limited to, any and all information regarding the parties, third-party providers, employees, managers, and materials conceived during the term of the Contract.
- Representation and Warranties: The parties represent and warrant to each other that a) each party is legally authorized and fully capable of entering into this Contract; b) to the best of their knowledge and understanding, there exists no legal action and claims of damage or suites against either party that may affect its ability to perform under this Contract and that may cause any negative effect on the image and reputation of the other party in the business industry; c) to the best of their knowledge and understanding, either party is not restricted or prohibited by any existing Contract to pursue business transactions under this Contract. Hofbauer Consulting will provide all Services in a professional and workmanlike manner. Hofbauer Consulting will not implement any Services in a way that would infringe the intellectual property rights of any third party.
- Disclaimer: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES EXPRESS IMPLIED INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT. EXCEPT AS PROVIDED FOR HEREIN, ALL SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” HOFBAUER CONSULTING AND ITS THIRD-PARTY PROVIDERS WILL HAVE NO LIABILITY OR RESPONSIBILITY TO THE CLIENT OR ANY OTHER PERSON WITH RESPECT TO ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH ANY OF THE CONTENT DISPLAYED VIA THE PLATFORM. EXCEPT AS PROVIDED FOR ABOVE, HOFBAUER CONSULTING DOES NOT REPRESENT OR WARRANT THAT ANY OF THE SERVICES WILL BE PROVIDED WITHOUT INTERRUPTION OR ERROR, AND HOFBAUER CONSULTING WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSSES INCURRED BY THE CLIENT RELATING TO THE UNAVAILABILITY OF THE INTERNET OVER WHICH THE CONTENT IS PUBLISHED. HOFBAUER CONSULTING MAKES NO REPRESENTATIONS OR WARRANTIES RELATING TO THE FINANCIAL RESULTS OF THE PERFORMANCE OF THE SERVICES. TO THE GREATEST EXTENT PERMITTED BY LAW AND EXCEPT FOR (A) INTELLECTUAL PROPERTY INFRINGEMENT; (B) A PARTY’S INTENTIONAL OR GROSSLY NEGLIGENT ACTS OR OMISSIONS; (C) FRAUD; OR (D) BREACH OF CONFIDENTIALITY OR SECURITY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES.
- Indemnification: Each party indemnifies the other party against any and all claims of action, damages, suits, attorney fees, and all other forms of liability that may arise during the party’s performance of obligations, or which may be a result of the party’s negligence or failure to perform obligations under this Contract.
- Terms and Termination: This Contract will commence upon the Contract Date and will remain in effect as long as The Client avails the Services of Hofbauer Consulting. In the event of a material breach of this Contract, the non-breaching party may terminate this Contract for any cause, provided that the terminating party provides written notice to the non-terminating party, with 60 days notice and opportunity to cure from the desired termination date. All pending responsibilities and obligations must be performed and/or paid by either party prior to the termination date. This Contract will be immediately terminated without notice in the event that either party declares bankruptcy, insolvency, or dissolution.
18. Waiver, Amendment, or Modification: No waivers, amendments, or modifications to this Contract shall be made unless expressed in writing and agreed upon by both parties. Failure of either party to exercise any right or to enforce a provision in this Contract will not be construed as a waiver by the party to exercise the same right or provision.
- Severability: Any invalidity, in whole or in part, of any provisions of this Contract, shall not affect the validity of any other provisions.
- Force Majeure: Non-performance by either party shall be excused for the duration of the time that the performance has been rendered impossible by unforeseen strikes, fires, floods, earthquakes, or governmental acts, orders, or restrictions. The obligations of both parties under this Contract will be suspended for a period that performance is prevented due to the force majeure event. Each party will use commercially reasonable efforts to mitigate any force majeure event. In the event of a force majeure event exceeding 7 days or a force majeure rendering the further performance of any material obligation by either party impossible, this Contract may be immediately terminated by either party without further obligation through written notice of termination furnished to the other party.
- Independent Contractor: The parties operate and transact under this Contract as a client (The Client) and an independent contractor/service provider (the Producer). The parties do not have an employer-employee relationship, nor are they in a joint venture or partnership.
- Non-Exclusivity: This is a non-exclusive service contract. The parties will not be prohibited or restricted from engaging and entering into similar agreements or contracts with other parties, provided that the engagements with other parties will not affect their conduct and performance of duties under this Contract.
- Dispute Resolution and Choice of Venue: Any dispute arising from this Contract will be first resolved through arbitration between the parties and arbitration by a person selected by both parties to act as such. The arbitration will be conducted as a venue, date, and time reasonably agreed upon by the parties. In case the dispute is not resolved by arbitration, the dispute will be brought to and settled in the proper courts of Richmond, Virginia.
- Governing Law: This Contract shall be governed by the laws of the state of Virginia applicable to contracts and agreements negotiated, executed, and performed wholly within Virginia.
- Headings and Captions: All marginal headings and numbers to the articles, sections, and subsections in this Contract are for the sole purpose of convenience of reference shall not in any way affect the construction or interpretation of this Contract.
- Entire Contract: This Contract constitutes the entire agreement by and between the Publisher and the Client, and supersedes all prior communication, understanding, representations, and agreements, either written and/or oral, with respect to all matters covered in the Contract.
ACCEPTANCE OF TERMS
The parties agree to be bound by and to comply with all the terms and conditions of this Agreement, including any supplements thereto and all specifications and other documents referred to in this Agreement.
By submitting a payment you agree to the Terms set forth in this agreement, as well as the online payment terms and conditions. If you no longer wish to be bound by these Terms, you should discontinue your usage of Hofbauer Consulting services.