Terms of Service
These Terms of Service (including all exhibits hereof and all other documents included herewith or referenced herein) represent and constitute the entire agreement (this 'Agreement') by and between Oddball Creative, LLC ('Oddball') and each business creating an account with Oddball ('Client') concerning Client's use of the web design and hosting services offered by Oddball. Oddball and Client may be referred to hereinafter collectively as the 'Parties' and individually as a 'Party.' For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties expressly agree as follows:
1. CERTAIN DEFINITIONS.
1.1 'Client-Furnished Material' means, collectively: (i) the domain name for the Client Website (as defined below); (ii) any names, passwords and other account access information for any of the Social Media Sites (as defined below) and Location-Based Sites (as defined below) created by or for Client; (iii) all information, data, content and material furnished by Client for storage, use, reproduction, posting, display, exhibition, transmission, publication and/or distribution (as the case may be) whether on or via the Client Properties (as defined below), the Oddball Systems (as defined below), or otherwise, including, without limitation, names, marks, logos, designs, slogans, text, writings, publications, artwork, graphics, images, photos, animations, videos, audios, links, software and social media plug-ins; and (iv) all hardware, software and other goods and services procured and maintained by Client pursuant to Section 2.12 of this Agreement.
1.2 'Client Properties' shall mean, collectively, the Client Website, the Social Media Sites and Location-Based Sites (as applicable).
1.3 'Client Website' means the consumer-facing website of Client as designed (whether by Client using the Oddball design tools or otherwise), constructed and hosted by Oddball pursuant to this Agreement.
1.4 'Effective Date' means the date on which Client creates an account with Oddball.
1.5 'Excused Outage' means any outage, unavailability, interruption, delay or degradation of the Services or the Client Website resulting from or caused by any of the following: (i) scheduled downtime, maintenance or repair; (ii) any act or omission by Client or anyone acting under its authority or on its behalf; (iii) any Client-Furnished Material; (iv) any User-Generated Material (as defined below); or (v) Force Majeure (as defined below).
1.6 'Force Majeure' means a cause or event that is beyond the reasonable control of Oddball and could not reasonably have been foreseen or avoided, including, without limitation, third-party network or system outage, hacking, virus attack or other form of sabotage, Acts of God, acts of government, strikes, lockouts, riots, insurrection, civil commotion, war and terrorist attacks.
1.7 “Contract Date” means the date on which the Client Accepts proposal and makes initial payment.
1.8 'IP' means any and all forms of intellectual property, including, without limitation, patent, trade secret, copyright, and trademark.
1.9 'Location-Based Sites' means the local business listing for Client on certain leading location-based websites selected by Oddball in its sole discretion. The Location-Based Sites may (but are not required to) include Google, Bing, Yahoo, MapQuest, and Yelp.
1.10 'Services' is as defined in Section 2.1 of this Agreement.1.11 'Service Fee' is as defined in Section 3.1 of this Agreement.
1.12 'Social Media Sites' means certain social media sites selected by Oddball in its sole discretion. The Social Media Sites may (but are not required to) include Facebook, Twitter, and YouTube.
1.13 'Term' is as defined in Section 4.1 of this Agreement.
1.14 'Oddball-Furnished Material' means, collectively: (i) the Oddball Website and all contents, materials, elements, features and functionalities thereof, but excluding Client-Furnished Material contained therein; (ii) all Oddball names, marks, logos, designs and brand images; (iii) all links and advertisements provided by Oddball; (iv) all Oddball Systems (as defined below) and all hardware, software, tools, technologies, processes, methods, techniques and know-how provided by Oddball (whether for use by Oddball or Client or otherwise) in the rendering of the Services; and (v) all results, work products and deliverables of the Services (including, without limitation, all Client Properties source code, object code, HTML files, Java files, data files, scripts, programs, templates, user interface designs, themes, page layouts and look and feel, and documentation created by Oddball), but excluding Client-Furnished Material contained therein.
1.15 'Oddball Systems' means all computer servers, networks and systems owned, controlled, or operated by Oddball and/or its corporate affiliates in connection with the rendering of the Services, including, without limitation, those associated with the Oddball Website.
1.16 'User' means any individual who visits or uses the Client Website but excludes each of the Parties and anyone who uses the Client Website on behalf of a Party.
1.17 'User-Generated Material' means any content or material uploaded, posted, submitted, or transmitted by a User on or via the Client Website.
2.1 Services. Subject to the terms and conditions of this Agreement, Oddball may provide the following services to Client: (i) providing tools for Client to design and construct a Client Website for distribution to desktop and mobile devices; (ii) hosting the Client Website during the Term; (iii) updating and suggesting content and design changes to enhance the Client Website's ranking in search engines; (iv) setting up listings for Clients on certain Location-Based Sites; (v) setting up and administering accounts for Client on certain Social Media Sites; and (vi) any other service offered by Oddball for which the Client is paying a fee (collectively the 'Services'). Oddball will provide the applicable Services to Client based upon the package selected by Client at registration. In addition, Oddball reserves the right to add, modify or discontinue Services from time-to-time in its sole discretion; provided, however, that Oddball shall provide Client thirty (30) days prior written notice in the event Oddball discontinues any Service. Oddball agrees to use commercially reasonable efforts to ensure that during the Term, the Client Website will be operational and accessible to Users on a 24/7 basis, except during any Excused Outage.
2.2 Subcontractors. Client acknowledges and agrees that Oddball may, in its sole discretion, use one or more third-party contractors (each, a 'Subcontractor') to provide some portions of the Services and/or other services related to the operations of the Oddball Website and/or the Client Properties, which may include, without limitation, data processing and storage, data security, technical support, purchase and payment processing, order fulfillment, and other e-commerce related functions.
2.3 Reservation of Right. Notwithstanding anything herein to the contrary, Client acknowledges and agrees that Oddball shall have the absolute right, at any time and with or without notice to Client, to (i) suspend, disable, block, restrict or limit access to the Client Website or any portion thereof and/or (ii) take down and remove any content or material (including, without limitation, any Client-Furnished Material, any User-Generated Material, or any Oddball-Furnished Material) from the Client Website, if doing so, in Oddball's sole judgment, is necessary or advisable in order to comply with any applicable law or regulation or to protect Oddball or its corporate affiliates from actual or potential claims or liabilities, or for any content or material which Oddball determines is offensive (including any pornographic images, any foul language, disparaging remarks, references to illegal substances, derogatory remarks regarding the religion, sexuality, politics, appearances or other characteristics or beliefs of any other person or entity, etc.), or infringes, misappropriates or violates any IP or other right of any person or entity.
2.4 Oddball-Furnished Material. Subject to the terms and conditions of this Agreement, Oddball hereby grants to Client a non-exclusive, non-transferable, non-sublicensable, limited right and license to use Oddball-Furnished Material solely for the purposes of receiving the Services from Oddball and operating the Client Properties during the Term.
2.5 Client-Furnished Material. Subject to the terms and conditions of this Agreement, Client hereby grants to Oddball a non-exclusive, non-transferable, non-sublicensable (except to a Subcontractor), limited right and license to use, reproduce, post, display, exhibit, transmit, publish and/or distribute (as the case may be) Client-Furnished Material solely for the purposes of providing the Services to Client during the Term in connection with the Client Properties. Client represents and warrants that: (i) it has the right to furnish and authorize use of Client-Furnished Material by Oddball in accordance with this Agreement; and (ii) no Client-Furnished Material will infringe upon or violate any right of any third party.
2.6 Domain Names. Client may select the domain name for the Client Website, which Oddball shall assist in registering (if available) in Client's name. To the extent Client has already registered the Client Website domain name, Client shall, promptly after the Effective Date, give Oddball full access to the domain name account and authorize Oddball to maintain and manage the account during the Term. Upon the expiration or termination of this Agreement, Oddball shall turn over the control of the Client Website domain name to Client.
2.9 User Aggregate Data. Client acknowledges and agrees that Oddball may (whether directly or through one or more Subcontractors) collect and derive aggregate data (i.e., information that does not identify any User individually, such as site traffic data and anonymous demographic information about Users) from the Client Properties, and that all such aggregate data shall become the property of Oddball and may be freely used by Oddball and its corporate affiliates for any and all lawful purposes.
2.11 Monitoring. Client acknowledges and agrees that Oddball shall have the right to monitor Client’s use of the Services electronically and remotely, the Client Properties and Oddball-Furnished Material to verify Client's compliance with the terms of this Agreement.
2.12 Hardware, etc. Client shall be solely responsible for procuring and maintaining (including, without limitation, the right to use), at its own expense, all hardware, software, Internet access, network connections, and other goods and services required for Client to access and use the Services and the Client Properties.
2.13 Passwords. Client shall safeguard all usernames, passwords, and other account access information for any Client Property (collectively 'Passwords'). Client shall be fully responsible for all activities that occur under its Passwords and shall promptly notify Oddball of any unauthorized use of its Passwords of which it becomes aware.
2.14 Advertising. Client acknowledges and agrees that during the Term: (i) the Client Website shall prominently display the phrase 'Web Design by Oddball Creative' and/or such other expression(s) determined by Oddball that identify the Client Website as designed and hosted by Oddball; and (ii) Oddball shall have the right to place and display Oddball-branded links and advertisements (e.g. banner and button ads) on the Client Website.
2.15 Ownership. As between the Parties: (i) all Oddball-Furnished Material and all IP rights associated therewith shall remain the sole property of Oddball and all use thereof by Client shall inure to the sole benefit of Oddball; and (ii) all Client-Furnished Material and all IP rights associated therewith shall remain the sole property of Client and all uses thereof by Oddball shall inure to the sole benefit of Client.
2.16 Client Information. By submitting Client information (including, without limitation, Client's name, address, email, telephone and other contact information, billing and payment information, Passwords and other Client-related information as provided by Client (collectively 'Client Account Information') to Oddball, Client expressly represents and warrants that all Client information submitted is Client's own information and is truthful, current and accurate, and Client further expressly acknowledges and agrees as follows:(i) Oddball may collect, store, retain, and use Client Account Information for all purposes related to Oddball's performance and enforcement of this Agreement, as well as to comply with applicable laws and regulations. Client billing and payment information (e.g. credit card information) will only be used for payment processing and collection purposes related to Client's account with Oddball and will not be used or stored for any other purposes (except as expressly otherwise stated).(ii) Oddball and its corporate affiliates may also use Client Account Information (except for Client billing and payment information) to offer, market and advertise to Client other products and services of Oddball and/or its corporate affiliates; provided that Client may opt out of receiving marketing communications from Oddball and its corporate affiliates by changing the Client account preferences or by contacting Oddball at support@Oddbalcreative.agency or by calling the number 1 (270) 681-5491. It is expressly understood and agreed that such opt-out by Client will not affect Oddball's notices and other communications to Client regarding the Client account, the Client Website, or any matter related to the Services or this Agreement.(iii) Oddball does not knowingly share Client Account Information with any non-affiliated third party for such third party's direct marketing use unless Client elects to opt in (whether on the Oddball Website or otherwise) to receiving marketing communications directly from such third party.
3. Fees and Payment.
3.1 Service Fee. In consideration for the Services, Client shall pay Oddball in advance the listed monthly fee for the Service package selected by Client commencing on the Contract Date (the 'Service Fee'). The Service Fee is NON-REFUNDABLE. The initial Service Fee shall be paid on the Effective Date. Thereafter, the monthly Service Fee shall become due on the monthly anniversary of the Contract Date. Client may cancel the Services and terminate this Agreement and its account pursuant to Section 4.2 of this Agreement.
3.2 Billing and Contact Information. Client shall provide Oddball with current and accurate billing and contact information and shall promptly notify Oddball of any change in such information. If the billing or contact information provided by Client is incorrect or incomplete or becomes outdated, Oddball shall have the right to immediately suspend the Services and access to the Client Properties without any liability to Client, until current and correct billing and contact information is provided by Client. If Client does not provide its updated billing and contact information within a reasonable time period after Oddball makes a request, Oddball shall have the right to terminate this Agreement with immediate effect with or without notice to Client, upon which Oddball will, without any liability to Client, cease all of the Services, permanently deactivate and terminate the Client Properties, and permanently delete the Client account and all Client-Furnished Material from the Oddball Website and the Oddball Systems.
3.3 Timely Payment. Client acknowledges and agrees that: (i) timely payment of the Service Fee for each billing period is essential to the continuation of the Services and the Client Properties; (ii) Client's failure to pay the Service Fee on time for a given billing period shall entitle Oddball to immediately suspend the Services and access to the Client Properties without any liability to Client; and (iii) if Client's account is delinquent for thirty (30) days or more, then in addition to its other rights and remedies, Oddball shall have the right to terminate this Agreement with immediate effect upon notice to Client, upon which Oddball will, without any liability to Client, cease all of the Services, permanently deactivate and terminate the Client Properties, and permanently delete the Client account and all Client-Furnished Material from the Oddball Website and the Oddball Systems.
3.4 Taxes. The Parties agree that Client shall pay the full amount of the Service Fee, exclusive of any sales, use, excise, value-added or other similar taxes, all of which shall be the responsibility of Client.
4. Term and Termination.
4.1 Term. The initial term (the 'Initial Term') of this Agreement shall commence on the Effective Date and end on the one (1) month anniversary of the Contract Date. Thereafter, the term shall automatically renew on a month-to-month basis on each monthly anniversary of the Contract Date. The Initial Term and any monthly renewal thereafter shall be referred to herein as the 'Term.'
4.2 Termination by Client. Following the Initial Term, Client may terminate this Agreement for any reason by calling the Oddball Creative Support Desk at (270) 681-5491 between the operating hours of 9:00 a.m. CST and 5:00 p.m. CST, Monday through Friday (excluding federal holidays). Client must submit its notice of cancellation no later than 5:00 p.m. CST on the day before the next billing date to avoid further charges; provided, that if such day is a Saturday or Sunday or a federal holiday, then no later than 5:00 p.m. CST of the last business day immediately prior to the start of the next billing cycle.
4.3 Termination by Oddball. Oddball shall have the right to terminate this Agreement with immediate effect with or without notice to Client as follows: (i) pursuant to Section 3.2 or 3.3 of this Agreement,; (ii) upon a breach of this Agreement, including, without limitation, Section 2.10, by Client (including anyone acting under its authority or on its behalf); (iii) if Client becomes insolvent, files for bankruptcy, or is adjudicated as bankrupt or insolvent, or makes an assignment for the benefit of creditors, or makes an arrangement pursuant to any bankruptcy law, or if a receiver, liquidator, custodian, trustee or the like is appointed for its business; or (iv) if Client winds down, liquidates, or otherwise ceases or discontinues its business for any reason. Notwithstanding the foregoing, Oddball shall have the right to terminate this Agreement with thirty (30) days prior written notice to Client for any reason or no reason.
4.4 Effect of Termination. Upon any termination of this Agreement:
(i) All unpaid and accrued Service Fee and Miscellaneous Costs amounts (including interest thereon, if any) owed by Client hereunder shall become immediately due and payable to Oddball;(ii) All rights and licenses granted by each Party to the other Party under this Agreement shall automatically cease and terminate;(iii) Oddball will cease all of the Services, permanently deactivate, and terminate the Client Properties, and permanently delete the Client account and all Client-Furnished Material from the Oddball Website and the Oddball Systems;(iv) Client shall have no further right or permission to access or use, except for the Client-Furnished Materials: (1) the Client Website, including any templates, designs or look-and-feel contained therein; (2) Oddball Website; (3) any of the Oddball-Furnished Material; (4) any of the Services; and (5) any of the Oddball Systems;(v) To the extent Client is in possession of any Oddball-Furnished Material (including any copies thereof), Client shall promptly return the same to Oddball or, if so requested by Oddball, promptly destroy the same;
EXCEPT AS EXPRESSLY OTHERWISE STATED HEREIN, ALL OF THE SERVICES, THE Oddball WEBSITE AND THE CLIENT PROPERTIES ARE PROVIDED ON AN 'AS IS' BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, Oddball HEREBY SPECIFICALLY DISCLAIMS, WITH RESPECT TO THE SERVICES, THE Oddball WEBSITE AND THE CLIENT PROPERTIES, ANY AND ALL (I) IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND NON-INFRINGEMENT, (III) WARRANTIES ARISING FROM ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND (IV) WARRANTIES THAT THE SERVICES, THE Oddball WEBSITE AND THE CLIENT PROPERTIES WILL BE UNINTERRUPTED, ERROR-FREE AND SECURE.
7. Limitations of Liability.
7.1 No Consequential Damages. IN NO EVENT SHALL Oddball BE LIABLE HEREUNDER TO CLIENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF BUSINESS OR OPPORTUNITY, OR LOSS OF USE OR DATA, EVEN IF Oddball HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
7.2 Maximum Liability. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF Oddball HEREUNDER TO CLIENT, REGARDLESS OF THE FORM OF CLAIM OR ACTION, EXCEED A SUM EQUAL TO THE TOTAL AMOUNT OF SERVICE FEES ACTUALLY PAID BY CLIENT TO Oddball DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE ARISING OF THE RELEVANT CLAIM OR ACTION.
8.1 Publicity. Neither Party shall issue any press release or public announcement about this Agreement or the relationship of the Parties hereunder unless such press release or announcement is issued jointly by the Parties.
8.2 Marketing Use of Client's Name. Client acknowledges and agrees that, during the Term, Oddball and its corporate affiliates may mention and use Client's name in sales, marketing, advertising and promotional materials (including, without limitation, sales/marketing pitches and presentations, and client/customer lists) for the purpose of identifying Client as a customer of Oddball.
8.3 Relationship of the Parties. The relationship of the Parties hereunder is that of independent contractors. Nothing in this Agreement shall be deemed or construed to constitute an agency, partnership, or joint venture between the Parties.
8.4 No Assignment. Client may not assign this Agreement, in whole or in part, without the prior written consent of Oddball.
8.5 Notices. Except with respect to the cancellation notice set forth in Section 4.2, all notices and other communications required or permitted under this Agreement shall be in writing and sent by courier or via e-mail or facsimile.
8.6 Entire Agreement. This Agreement (including all of the Exhibits hereto) constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior understandings, communications, and agreements, written or oral, between them with respect thereto. This Agreement may not be amended or modified, except by a written instrument executed by both Parties.
8.7 Severability. If any provision or any portion of any provision of this Agreement is held to be illegal, invalid or unenforceable, such shall be deemed stricken and deleted from this Agreement to the same extent and effect as if never incorporated herein, but all other provisions of this Agreement and any remaining portion of any provision which is not deemed illegal, invalid or unenforceable shall continue in full force and effect.
8.8 No Waiver. No failure or delay by a Party to exercise any remedy in the event of a breach of this Agreement by the other Party will in any way operate as a waiver of such remedy, nor will any single or partial enforcement of any remedy for breach preclude the further enforcement of such remedy or the enforcement of any other remedy.
8.9 Governing Law. This Agreement, including all disputes and controversies between the Parties arising from or connected to this Agreement, shall be governed by and construed in accordance with the laws of the State of Kentucky, without giving effect to its conflict of laws rules, with venue being a court of competent jurisdiction in Owensboro, Daviess County, KY.