These Standard Terms of Service (the “Terms”) contain the terms and conditions upon which Epicenter, Inc. (“Epicenter”) provides services (the “Services”) to any customer (the “Customer”). The complete agreement between the Parties (the “Agreement”) consists of these Terms and all of the Service Contracts with the Customer. In the event of any conflict between a Service Contract and the Terms, the Service Contract shall govern. Epicenter reserves the right to change, modify, add or remove portions of these Terms at any time. Such modifications and additional terms and conditions will be communicated to the Customer and will be effective immediately. Customer’s continued receipt of the Services following any such modification and/or amendment shall be deemed acknowledgment thereof and consent thereto.
Unless expressly stated in a Service Contract, the Services shall be performed for one (1) customer website (the “Website”).
No portion of the Services may be reproduced in any form or by any means, except as expressly permitted in these terms. Customer agrees not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services in any manner.
Unless explicitly agreed otherwise in the applicable Service Contract, the Customer shall be responsible for payment for any third-party materials including tools, services, plug-ins, extensions, graphics, sounds, texts or other content required for the Website.
Fees and Payment Terms
Customer shall pay to Epicenter all fees due for the Services according to the prices and terms listed in the Service Contracts together with all reasonable fees and costs for third party products or services Epicenter procures on behalf of Customer, to the extent approved by Customer in writing. Except as otherwise set forth in a Service Contract with respect to a particular Service, the prices listed in a Service Contract will remain in effect during the term indicated in such Service Contract. Epicenter reserves the right to change, upon thirty (30) days’ prior written notice to Customer, any fees it charges Customer (i) for any Services during a renewal term; or (ii) based on a change in law, rule or regulation, or similar circumstances that materially increases the costs or other terms of delivery of any Service, and, in each case Customer’s continued use of such Service as of the first day of the renewal term or following the notice period, as applicable, shall constitute its acceptance of the changed fee. Alternatively, Customer may terminate such Service Contract by providing written notice to Epicenter within thirty (30) days of receiving notice of the changed fee.
All undisputed fees and charges are due within thirty (30) days after Customer’s receipt of invoice therefor. For any invoice charges not received within ninety (90) days from when they are due, Epicenter reserves the right to charge interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower, from the original date such payment was due. In addition to the foregoing and without prejudice to Epicenter’s other rights and remedies under this Agreement, at law or equity, if Customer is delinquent in its payments, Epicenter may, at Epicenter’s sole discretion, do any one or more of the following: (i) terminate the applicable Service Contract or this Agreement pursuant to its terms; (ii) in whole or in part suspend providing Services to Customer until payment in full has been made to Epicenter or (iii) require other assurances to secure Customer's payment obligations hereunder.
All fees charged by Epicenter with respect to the Services are exclusive of taxes, withholdings, and similar fees now in force or enacted in the future imposed on the transaction, all of which the Customer will be responsible for, except for taxes based on Epicenter’s net income.
The term of this Agreement (the “Term”) shall begin upon execution by both Customer and Epicenter of a Service Contract and shall continue in full force and effect until every Service Contract hereunder has been terminated. Each Service Contract entered into by the parties shall be effective upon execution by both Customer and Epicenter and shall continue in full force and effect until its termination.
Notwithstanding the foregoing, either party may terminate this Agreement or any Service Contract for cause immediately upon written notice to the other party (or Epicenter may, in its sole discretion, suspend the provision of Services under any Service Contract) if: (i) the other party commits a breach of this Agreement and fails to cure such breach within fifteen (15) days after written notice of the same; (ii) the other party becomes the subject of any involuntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party commits a material breach of this Agreement.
Notwithstanding anything herein to the contrary, Epicenter may cancel or suspend the provision of any Service, or portion thereof, upon reasonable notice to Customer if the provision of that Service, or any portion thereof, is determined to be a violation of any applicable law or regulation or of any Epicenter license in any jurisdiction, or is no longer permitted under any of the same.
Notwithstanding any provision to the contrary, early termination of this Agreement and/or any Service Contract by the Customer shall not relieve the Customer from payment of fees for services provided and expenses incurred prior to the effective date of such termination.
Customer shall designate a representative (the “Customer Manager”) who shall have overall responsibility for managing and coordinating Customer’s obligations hereunder and who has the authority to act for and bind Customer in connection with the Services. The Customer Manager shall serve as Epicenter’s initial point of contact for the resolution of issues in connection herewith, must be available to Epicenter during the Term and have authority to schedule performance of the Services and address any issues that may arise.
Customer will provide Epicenter with all data, materials and information reasonably necessary for Epicenter to perform the Services.
Customer shall provide and coordinate Epicenter’s access to any Customer facilities or Customer network or system (the “Customer System”) as necessary. Customer shall inform Epicenter in writing and in advance of Services of any security and access standards or requirements with respect thereto.
Epicenter’s completion of the Services depends upon Customer’s timely feedback and approval of deliverables. Epicenter shall not be responsible for additional fees, time, or expenses incurred because of delays caused by Customer’s lack of or untimely response, feedback or approval.
Epicenter shall have the right, but not the obligation, to back up or archive Customer’s Website before delivery or in the event of termination.
All services will be provided during normal business hours 10am – 6pm (EST) Monday through Thursday and 10am - 3pm on Friday, excluding Epicenter holidays as set out in the Epicenter calendar communicated to Customer from time to time. Where emergency support services are requested, Epicenter reserves the right to decline or delay provision of such services.
Compliance with Laws
Customer shall be solely responsible for complying with all applicable laws, statutes, rules, regulations and ordinances, including, but not limited to, consumer protection, privacy and data protection laws, and marketing, sales and tax laws.
Except for content and materials provided by Customer (“Customer Content”), the content of the Services, including, without limitation. the text, software, scripts, source and object code, API’s, graphics and interactive features (“Epicenter Content”), and all intellectual property rights therein, are owned by or licensed to Epicenter. Epicenter Content is provided to Customer “as is”, “as available” and “with all faults” for Customer’s information and personal, non-commercial use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purposes whatsoever without the express prior written consent of Epicenter. No right or license under any copyright, trademark, patent, or other proprietary right or license is granted by this Agreement. Epicenter reserves all rights not expressly granted in and to the Epicenter Content and the Services, and this Agreement does not transfer ownership of any of these rights.
It is solely Customer’s responsibility to ensure that any and all Customer Content does not infringe or violate the intellectual property rights (including, but not limited to, trademarks, trade names, copyrights, patents, domain registration rights, trade secrets) or any other right of any third party (including, but not limited to, rights of privacy and contractual rights), and to ensure that Customer has acquired any and all authorizations necessary to use intellectual property (including, but not limited to, copyrights and trademarks) or other proprietary information of third parties therein included in the Customer Content.
Customer hereby represents and warrants that Customer owns all rights in and to any Customer Content provided to Epicenter, including any designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, interfaces, text, literary works and any other materials, or otherwise has and shall have the full power, title, license and authority, in and to the Customer Content, to legally use, publish, transfer or license any and all rights and interests in and to the Customer Content for the purposes of this Agreement. The Customer Content is (and will continue to be) true, current, accurate, non-infringing upon any third party rights, and in no way unlawful for Customer to possess, post, transmit or display in the country in which Customer or Customer’s users reside. Customer further represents and warrants that Customer has obtained all consents and permissions required under all applicable laws, regarding the posting, transmission and publication of any personal information and/or image or likeness of any person, entity or property which is part of the Customer Content, and Customer will adhere to all laws applicable thereto. Epicenter shall have no liability and Customer agrees to defend and indemnify Epicenter, its affiliates and their respective directors, officers, employees, agents, successors and assigns, against any actual or alleged claim that any Customer Content infringes or violates any rights of third parties, including, without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses.
By submitting content to Epicenter, Customer grants Epicenter an unrestricted license (i) to use the Customer Content for the purpose of carrying out the Services, and (ii) to display screenshots of Customer’s website or any other product of the Services online, in marketing materials, and in any other manner Epicenter desires.
Unless otherwise specifically provided in this Agreement, no right or license under any copyright, trademark, patent, or other intellectual property right or license is granted by this Agreement. Epicenter reserves all rights not expressly granted herein.
Representations and Warranties
Each party warrants and represents that: (i) it has the legal right to enter into this Agreement (including any and all Service Contracts) and perform its obligations hereunder; and (ii) the performance of its obligations hereunder will not violate any applicable U.S. laws or regulations or cause a breach of any agreements with any third parties. In addition, Customer represents and warrants that the performance of its obligations and use of the Services by Customer or its clients will not violate any applicable laws.
Each party acknowledges that it will have access to certain “Confidential Information” of the other party, which shall include data or information relating to the business of the disclosing party, regardless of whether the data or information constitutes a trade secret, disclosed to the other party or of which the other party became aware of as a consequence of this Agreement, not generally known to competitors of the disclosing party, and which includes trade secrets, methods of operation, names of customers or other customer information, price lists, marketing strategies, financial information and projections, route books, personnel data, and similar information however disclosed and in whatever form, whether or not such information is marked as confidential; provided, however, that such term shall not mean data or information (A) which has been voluntarily disclosed to the public by the disclosing party, except where such public disclosure has been made by an employee or service provider of the disclosing party without authorization from the disclosing party; (B) which has been independently developed and disclosed by others; or (C) which has otherwise entered the public domain through lawful means. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or to the limited extent required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law pursuant to Section 9.2 below or to such party’s employees, attorneys, accountants and other advisors as reasonably necessary, provided that they are bound by confidentiality obligations towards the Confidential Information no less restrictive than the terms set forth herein), any Confidential Information of the other party. Each party will protect the confidentiality of the Confidential Information of the other party by employing the same measures (but in no event less than reasonable measures) as it takes to protect its own Confidential Information. The obligations of this Section 9 shall last during and after the term of this Agreement.
The receiving party may disclose Confidential Information pursuant to the requirements of a validly issued subpoena, governmental agency or by operation of law, provided that it gives the disclosing party, unless prohibited by law, reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.
The parties agree to work together in a reasonable manner to resolve changes required to be made to any aspect of the Services, as provided for herein.
Should the need for changes to a project arise, the parties will discuss the required changes, and capture the agreed upon changes in the form of a written change order (the “Change Order”). The Change Order will specify the nature of the changes to service scope, approach, resources and/or deliverables as well as specify additional fees and/or expenses to be incurred as a result of the changes as well as any timeline or schedule changes to the originally agreed upon project schedule as provided for in the Service Contract. In order to be effective, a Change Order must be signed by both parties to this Agreement. Should a disagreement arise out of the need for a Change Order, the dispute resolution provisions of this Agreement govern the handling of that dispute.
Unless otherwise provided in the Service Contract, and except as otherwise provided for herein, Customer shall pay additional charges for changes requested by Customer which are outside the scope of the Services on either a time and materials basis, and which exceed 5% of the time required to deliver the Services defined in the Service Contract, at Epicenter’s standard rates for the resources involved in the change or an alternate rate that is mutually agreed upon by the parties, or by an increase in the regularly billed fees specified in the Service Contract. Such charges shall be in addition to all other amounts payable under the Service Contract, regardless of any maximum budget, contract price or final price identified therein.
If Customer requests or instructs changes that amount to a revision of 15% or more of the time required to deliver the Services defined in the Service Contract and/or the value or scope of the Services, Epicenter shall be entitled to submit a new and separate statement of work (“SOW”) to Customer for written approval. Work shall not begin on the revised services until a fully signed revised SOW and, if required, any additional fees are received by Epicenter.
Epicenter will prioritize performance of the Services as may be necessary or as identified in the SOW, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the SOW. Customer agrees to review deliverables within the time identified for such reviews and to within a commercially reasonable amount of time either, (i) approve the deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Customer’s concerns, objections or corrections to Epicenter. Epicenter shall be entitled to request written clarification of any concern, objection or correction. Customer acknowledges and agrees that Epicenter’s ability to meet any and all schedules is entirely dependent upon Customer’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the SOW and that any delays in Customer’s performance or changes in the Services or deliverables requested by Customer may delay delivery of the deliverables. Any such delay caused by Customer shall not constitute a breach of any term, condition or Epicenter’s obligations under this Agreement.
Epicenter will test deliverables requiring testing and shall make all necessary corrections prior to providing deliverables to Customer. Customer, within fourteen (14) business days of acknowledged receipt of each deliverable, shall notify Epicenter, in writing, of any failure of such deliverable to comply with the specifications set forth in the SOW, or of any other objections, corrections, changes or amendments Customer wishes made to such deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Epicenter will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Customer, the deliverable shall be deemed accepted. Notwithstanding the foregoing, no deliverable shall be used or published without the active written consent of Customer.
DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
THE WEBSITE AND ALL PRODUCTS AND SERVICES PROVIDED TO CUSTOMER ARE (EXCEPT AS EXPRESSLY STATED) PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO CUSTOMER.
EPICENTER DOES NOT REPRESENT OR GUARANTEE THAT THE SERVICES WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND EPICENTER DISCLAIMS ANY LIABILITY RELATING THERETO.
IN NO CASE SHALL EPICENTER, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND, INCLUDING, BUT NOT LIMITED TO LOSS OF DATA, LOSS OF GOODWILL OR LOSS OF PROFITS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, AND REGARDLESS OF WHETHER EPICENTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR WHETHER SUCH DAMAGES ARE REASONABLY FORESEEABLE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, EPICENTER’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
EPICENTER’S MAXIMUM LIABILITY TO CUSTOMER RELATING TO THE SERVICES AND ITS PERFORMANCE OR NONPERFORMANCE HEREUNDER SHALL BE LIMITED IN THE AGGREGATE TO THE FEES RECEIVED BY EPICENTER PURSUANT TO THE APPLICABLE SERVICE CONTRACT DURING THE PREVIOUS TWELVE (12) MONTH PERIOD.
THE PARTIES ACKNOWLEDGE THAT EPICENTER HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT AND EACH SERVICE CONTRACT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
Customer will indemnify, defend and hold Epicenter, its affiliates and their respective directors, officers, employees, agents, successors and assigns harmless from and against any and all costs, liabilities, losses, and expenses payable to a third party and resulting from any claim, suit, action, or proceeding brought by any third party arising out of Customer’s (i) breach of this Agreement; (ii) violation of applicable law or regulation or (iii) negligence or willful misconduct.
During the Term hereof, and for a period of one (1) year thereafter, Customer hereby covenants and agrees not to actively solicit, divert, recruit or attempt to hire any Epicenter employee or independent contractor.
This Agreement shall inure to the benefit of and be binding upon the permitted successors, legal representatives and assigns of the parties hereto.
This Agreement constitutes the exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. Each Service Contract includes terms that are in addition to, and not in lieu of, these Terms. The headings in this Agreement are provided for convenience only and will not affect its construction or interpretation. The parties and their respective personnel are and shall be independent contractors, and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof. If any provision of this Agreement is determined to be invalid under any applicable law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable. There shall be no third party beneficiaries to this Agreement. All notices shall be in writing and shall be deemed to be delivered when received by certified mail, postage prepaid, return receipt requested, or when sent by e-mail, confirmed by email. All notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, designate by notice to the other party. In addition to any provisions that by their nature would survive, Sections 2 (Fees and Payment Terms), 6 (Compliance with Laws), 7 (Proprietary Rights), 8 (Representations and Warranties), 9 (Confidential Information), 11 (Disclaimer of Warranties; Limitation of Liability), 12 (Indemnity), 13 (Non-Recruit) and 15 (General), shall survive termination, cancellation or expiration of one or more Service Contract(s) and/or this Agreement. This Agreement and all obligations of the parties hereunder shall be interpreted, construed, and enforced in accordance with the laws of the State of New York, without regard to any conflict of laws rules or analyses. Any action or proceeding arising from or relating to this Agreement must be brought in a state or federal court having jurisdiction in the State of New York, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding and agrees to waive any defenses to venue and jurisdiction including forum non conveniens. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. These Terms and any Service Contract entered into hereunder may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. The parties may sign any Service Contract and deliver the signature pages via email or electronic transmission.
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