Terms of Service

EWR Digital

TERMS AND CONDITIONS

1. SERVICES

EWR agrees to perform services for Client as set forth in one or more Statement(s) of Work, Sales Contract and/or Change Orders or similar mutually agreed upon documents (hereinafter “Statement of Work(s)”). The services set forth in such Statement of Work shall be referred to as “Services.” The method, manner and means by which the Services will be performed shall be set forth in the Statement of Work. The end product of the Services shall consist of anything provided to the Client pursuant to the relevant Statement of Work including any written documentation and any license granted pursuant to the Statement of Work to use the copy or other work product written on behalf of Client, all of which shall be referred to as “Deliverables.”

SEO – Web Design – PPC – Branding – CRO – Analytics – Public Relations – Video Production – Digital Strategy 

The Statement of Work shall set forth the details and define any Deliverables, including submission, review, and acceptance thereof, or if not specified in the Statement of Work, Client shall, within ten (10) days of receipt of each Deliverable submitted to Client, advise EWR of Client’s acceptance or rejection of such Deliverable. Any rejection shall specify the nature and scope of the deficiencies in such Deliverable. EWR shall, upon receipt of such a notice of rejection, act diligently to correct such deficiencies. The failure of Client to provide such a notice of rejection within such period shall constitute acceptance by Client of said Deliverable.

2. PAYMENT FOR SERVICES

Client is responsible for all third party fees, including any necessary license fees required to purchase and install new plugins or software on the website. These fees will be communicated to the client in writing before they are incurred. Client agrees to and shall reimburse EWR for costs and expenses (including attorneys’ fees) incurred in collection under this Agreement or any Statement of Work. EWR may request that Client provide credit information prior to beginning each new Statement of Work.

If Client fails to pay any amount properly due by the due date, EWR may, after giving three days notice to Client, suspend any work until payment is made in full. EWR reserves the right to withhold delivery of any current work if accounts are not current or overdue invoices are not paid in full. If any overdue invoice is not resolved after 30 days, the services or project can be be paused until payment is resolved, and/or the website may be shut down if services are financed through EWR at EWR’s sole discretion, and EWR reserves the right to retain any and all work and all access codes until payment is made. Additionally, a (2% of the outstanding balance) service fee will be applied for each time payments are declined.

3. INVOICING

4. CONFIDENTIAL INFORMATION

Confidential Information shall include all information disclosed by one Party to the other Party which is identified in writing as Confidential Information, and relates to the disclosing Party’s past, present or future research, development, trade secrets, proprietary information or business activities together with any information not entitled to protection under any statutory definition of trade secret but not yet in the public domain, relating to the names or addresses of clients or customers, patient data, processes, formulae, software source code, research, ideas, order books, promotional and instructional materials and manuals, selling information, inventions, discoveries, improvements, modifications, equipment, methods of production, costs or prices or uses of EWR’s Services, business plans of EWR and other information, regardless of medium, and whether belonging to EWR or in EWR’s possession pursuant to obligations of secrecy to others. All Confidential Information of one Party which comes into the possession of the other Party shall remain the sole property of the disclosing Party and shall not be copied by the other Party except to the extent required in the performance of their respective obligations under this Contract. Upon the request of a disclosing Party, the non-disclosing Party shall return or destroy, at the expense of the disclosing Party, all such Confidential Information which is requested by the disclosing Party to be returned or destroyed.

Confidential Information shall also include: (a) any unannounced product or services; (b) the terms, conditions and subject matter of the Contract; (c) all information and reports that may be generated by the disclosing Party pursuant to any Statement of Work; (d) interim reports and work product that may be generated in association with the Contract; (e) all Deliverables; and (f) any other information or materials identified as “confidential” by either Party.

Information falling into any of the following categories shall be excluded from the requirements of this Section: (a) information, which at the time of disclosure, is already in the public domain; (b) information, which after disclosure hereunder enters the public domain other than by breach of this Agreement; (c) information, which is already known by the recipient prior to disclosure hereunder; (d) information, received from a third party which has an independent right to disclose the information; and/or (e) information, which is made available through independent research without use of or access to the Confidential Information. Notwithstanding the foregoing, Client agrees that upon giving written consent, EWR may use the Client’s name to identify Client as a company that has used EWR’s services in its marketing efforts.

5. PUBLICITY

6. STAFF

The Statement of Work may include work schedules of Staff. EWR shall use reasonable efforts consistent with sound business practices to provide Staff in accordance with such schedules. If the Services are performed at the Client’s site, then EWR’s time spent at the premises is to be at the discretion of EWR. The Parties shall cooperate to establish hours of access to Client’s site which are mutually satisfactory to both Parties. EWR and its Staff shall have no authority to bind or make commitments to a third Party on behalf of Client for any purpose and shall not hold itself or themselves out as having such authority.

Client agrees that while EWR is performing Services under this Agreement, and for a period of twenty four (24) months following the date of the final invoice of the last Statement of Work pursuant to which Services were performed, Client will not, except with EWR’s prior written approval, solicit, offer employment to, employ, or retain the services of (directly or indirectly) EWR’s employees or contractors engaged in any efforts generated by this Agreement.

EWR agrees that while Client is purchasing Services under this Agreement and for a period of twenty four (24) months following the date of final invoice of the last Statement of Work pursuant to which services were performed, EWR will not, except with Client’s prior written approval, solicit, offer employment to, employ, or retain the services (directly or indirectly) of Client’s employees or contractors engaged in any efforts generated by this Contract.

7. TERM AND TERMINATION

EWR shall have the right to immediately terminate this Agreement and any Statement of Works by written notice to Client if Client shall fail to: (i) Make a payment owed to EWR within thirty (30) days of the due date of a payment; or (ii) Communicate or cooperate with EWR for 10 consecutive business days upon EWR’s request. Upon such notice of termination, all remaining responsibilities of EWR under each Statement of Work shall terminate; The Client will still be responsible for monies owed under each Statement of Work; and the Client will not be entitled to a refund of any monies paid.

8. CONTRACT REPRESENTATIVE

9. TAXES

10. INSURANCE

11. LIMITED WARRANTY AND INDEMNIFICATION

EWR warrants to Client that the Services will be of the kind and quality designated in the Statement of Work and will be performed by qualified personnel. All special requirements for format standards or methods to be followed shall be included in the Statement of Work and executed by both Client and EWR. In the event of a breach of the foregoing warranty, EWR’s sole obligation shall be to correct any material error so as to bring the Deliverables into compliance therewith. Any claim for breach of the foregoing warranty must be made by written notice to EWR within thirty (30) days of EWR’s delivery of the Deliverables. This is a contract for services and is not governed by the Uniform Commercial Code.

EXCEPT AS PROVIDED IN THIS SECTION, EWR MAKES NO OTHER WARRANTIES OR REPRESENTATIONS WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, ORAL OR WRITTEN STATEMENTS OF EWR, ITS AGENTS, OFFICERS, SHAREHOLDERS, SUBCONTRACTORS OR OTHERWISE, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EWR CANNOT AND DOES NOT GUARANTEE THAT THE FUNCTIONS CONTAINED IN ANY CLIENT WEBSITE, WEB PAGE, TEMPLATE, OR OTHER CLIENT PROJECT WILL ALWAYS BE ERROR-FREE. IN NO EVENT SHALL EWR BE LIABLE TO THE CLIENT IN CONNECTION WITH THIS STATEMENT OF WORK, REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, FOR ANY: (I) INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, LIQUIDATED, INCIDENTAL OR PUNITIVE DAMAGES; AND/OR (II) LOST PROFITS, LOST REVENUES, LOST BUSINESS EXPECTANCY, BUSINESS INTERRUPTION LOSSES AND/OR BENEFIT OF THE BARGAIN DAMAGES. THIS LIMITATION OF LIABILITY FROM CLIENT TO EWR INCLUDES BUT IS NOT LIMITED TO ALL SUCH DAMAGES ARISING OUT OF THE OPERATION OF OR INABILITY TO OPERATE ANY CLIENT WEBSITE, WEB PAGE, TEMPLATE, OR PROJECT EVEN IF CLIENT ADVISES EWR OF THE POSSIBILITIES OF SUCH DAMAGES. THE FOREGOING SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

Client understands and agrees that EWR shall have no responsibility for or be liable for to any extent for any hardware, software or other items or property manufactured or prepared by anyone not a party to this Agreement.

With the exception of EWR’s Indemnification obligations listed herein and any intentional or grossly negligent act by EWR which causes personal injury or damage to tangible property, the Parties agree that in no event shall EWR’s total liability to Client, regardless of the character or type of damages sought, exceed the amount received pursuant to the relevant Statement of Work. The provisions of this Agreement allocate the risks between the Parties. EWR’s pricing reflects this allocation of risk and the limitation of liability specified herein.

No actions or disputes, regardless of form, arising out of any Services, may be brought by either Party more than one (1) year after the termination of this Agreement.

In performing the Services, EWR agrees not to design, develop, or provide to the Client any items that infringe one or more patents, copyrights, trademarks or other intellectual property rights (including trade secrets), privacy, or other rights of any person or entity. If EWR becomes aware of any such possible infringement in the course of performing any Services, EWR shall immediately notify the Client in writing. EWR’s total liability under this Agreement shall not exceed the total amount paid to EWR by Client for Services performed under the applicable Statement of Work that the alleged or actual infringement occurred under.

Client Representation and Indemnity. The Client represents that photographs, illustrations, graphics, audio clips, video clips, designs, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by the Client to EWR for inclusion in a Client website or other project (“Client’s Content”), are either owned by the Client, or that Client has a license or other permission to publish and use such Client’s Content. The Client understands and agrees that EWR’s incorporation of any of Client’s Content in the provision of EWR’s Services (including but not limited to EWR’s managing or broadcasting of Client’s Content on the Client Website or Client’s social media accounts) constitutes a publishing by Client and not EWR.

Client shall indemnify and hold harmless EWR (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by EWR as a result of any claim, judgment, or adjudication against EWR related to or arising out of any and all work or performance of professional services on this Project including but not limited to (a) Client’s Content, or (b) a claim that EWR’s use of Client’s Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, EWR must: (i) give Client prompt written notice of a claim; and (ii) allow the Client to control, and fully cooperate with the Client in, the defense and all related negotiations.

Client acknowledges that EWR is not responsible and agrees to hold EWR harmless for any delays or damages resulting from Client’s failure to make such submissions in a timely manner.

12. FORCE MAJEURE

13. COMPLETE AGREEMENT

14. APPLICABLE LAWS

This Agreement shall be construed in accordance with the laws of the State of Texas without application of principles of conflicts of laws.The parties hereto consent to the jurisdiction and venue of the state and federal courts of Harris County, Texas with respect to all subject matters covered by this Agreement, PROVIDED HOWEVER, that the Parties shall first be governed by the binding arbitration provisions as specified below:

Binding Arbitration. Any controversy or claim of every kind arising out of or relating to this Agreement or any Statement of Work shall be settled by arbitration administered by the American Arbitration Association pursuant to the Commercial Arbitration Rules of the American Arbitration Association, as modified by any other instructions that the parties may agree upon at the time, except that each Party shall have the right to conduct discovery in any manner and to the extent authorized by the Federal Rules of Civil Procedure as interpreted by

the federal courts. If there is any conflict between those Rules and the provisions of this Section, the provisions of this Section shall prevail. The forum for the arbitration shall be Harris County, Texas. There shall be one arbitrator (unless the Parties are able to agree on the necessity of having three (3) arbitrators) selected from a list of possible arbitrators provided by the AAA. If the Parties are unable to agree on such arbitrator within ten (10) days after the initiation of an arbitration proceeding, the arbitrator shall be appointed by the commercial panel of the American Arbitration Association. The arbitrators shall have power and authority to award any remedy or judgment that could be awarded by a court of law in Texas. The award rendered by arbitration shall be final and binding upon the Parties, and judgment upon the award may be entered in any court of competent jurisdiction in the United States. Each Party shall bear its own fees and expenses with respect to the arbitration and any proceeding related thereto and the Parties shall share equally the fees and expenses of the American Arbitration Association and the arbitrators.

Exceptions to Arbitration. Notwithstanding anything to the contrary, the Parties may seek injunctive or equitable relief from a court of competent jurisdiction in any state or federal court in Houston, Harris County, Texas without first participating in arbitration through American Arbitration Association.

15. SEVERABILITY

16. WAIVER

17. NOTICES

Notices to EWR should be sent to: