- “Seller” is eWebResults Marketing Agency
- “EWR” is eWebResults Marketing Agency
- “We” is eWebResults Marketing Agency
- “Client” is client of eWebResults Marketing Agency
- “you” is client of eWebResults Marketing Agency
- “Agreement” is the Master Service and Product Agreement
- “MSA” is the Master Service and Product Agreement
- “SOW” is Statement of Work
- “SLA” is Service Level Agreement
- “SEO” is Search Engine Optimization
- “BBB” is Better Business Bureau
Terms and Conditions
These Terms of Service are entered into by and between E-Webstyle.com, LLC d/b/a EWR Digital its affiliates, and assigns (“EWR”), at 13105 Northwest Freeway Suite 765 Houston, TX 77040, and Client as that term is defined in any Statement of Work between the parties and/or by executing a Service Agreement and or a Statement of Work between the parties. EWR and Client are collectively referred to as “Parties” and individually referred to as “Party.” This is a legally binding agreement and the equivalent of a signed, written contract.
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.”
Each Statement of Work shall become effective only upon execution by the authorized representative of EWR and Client. Further, each fully executed Statement of Work entered into under this Agreement shall be construed to incorporate the provisions of and to be governed by this Agreement. This Agreement and any Statement of Work executed pursuant to this Agreement shall be collectively referred to as the “Contract.” The terms and conditions set forth on a specific Statement of Work shall apply only to those services set forth on that specific Statement of Work. In the event of any conflict between the terms of the Agreement and any Statement of Work, the terms of the Agreement shall control.
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 agrees to pay EWR for Services in accordance with the Statement of Work and any schedules made a part thereof, executed by both Client and EWR. Each Statement of Work shall set forth the fees and the mode of payment for performance rendered by EWR thereunder. Client shall have no right to offset (or to withhold any monies owed) for any claims against EWR or its vendors and shall fully and timely pay all invoices.
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.
Client shall pay to EWR the amounts agreed to in each Statement of Work within thirty (30) days receipt of EWR’s invoices or as set forth in each Statement of Work. Any dispute or disagreement that the Client has with any invoice shall be made within ten (10) days of the Client’s receipt of such disputed invoice or said dispute is waived by Client. If the outstanding balance of any invoice is not paid in full within thirty (30) days, a service charge of 1.5% per month on the outstanding balance may be imposed.
4. Confidential Information
EWR and Client hereby acknowledge that during the performance of this Contract, they each may learn or receive confidential information (“Confidential Information”) of the other. Each Party hereto shall hold in trust for the other Party hereto and shall not disclose to any non-Party to the Contract, any Confidential Information of the other Party, except with other Party’s prior written consent. This section shall remain in full force and effect af the termination of this Contract, for a period of three (3) years.
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.
EWR is proud of the services it provides its clients, and regularly utilizes examples of its clients’ projects in EWR’s marketing and business development efforts. Client hereby provides EWR with the right to publicize and publicly display Client websites and projects, and/or provide links to Client websites or projects on EWR’s website, social media, or other marketing and business development efforts. Client agrees to allow EWR to utilize details of the, as created campaign, for the purpose of sales, marketing and training. EWR reserves the right the use examples of work performed in case studies, education products, or marketing materials, per client approval.
For the purposes of this Contract, EWR’s staff (“Staff”) shall include employees of EWR and subcontractors engaged by EWR to provide all or any portion of the Services. EWR is, and shall remain, an independent contractor, and neither EWR nor Staff is or shall be deemed to be employed by Client. EWR shall have the sole responsibility for recruiting, hiring, training, evaluating, replacing, supervising, disciplining and terminating Staff assigned to fill the Client’s needs. Client hereby acknowledges that during the performance of this Contract, EWR may need to hire subcontractors to assist it in the performance of Services. Client hereby agrees to the retention by EWR of subcontractors. Any subcontractors retained by EWR shall be independent contractors of EWR. The subcontractors shall be bound by the terms and conditions of this Contract.
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
This contract shall be in effect for a one (1) year initial term from the date written beneath the Client’s signature on the Statement of Work last executed by the Client. After the initial term, this contact will automatically renew on the same terms each term thereafter, unless terminated earlier in writing in accordance with this provision. Either Client or EWR may terminate this Contract before the end of the term of this Contract, for any reason after giving 90 days written notice to the other, or the term specified in the Statement of Work, whichever time period for notice of termination is greater; provided, however, notwithstanding such termination, the provisions of this Agreement shall continue to apply to all Statement of Work in effect until the earlier of the (i) completion of all Services under each Statement of Work, or (ii) termination of each applicable Statement of Work.
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
The EWR representative named in Section entitled Notices or a substitute contract representative designated in writing by EWR (the “Representative”), shall represent EWR with the Client during the performance of this Contract with respect to the terms and conditions of this Contract. Only an officer of each respective Party shall have the authority to execute written modifications or additions to this Contract.
Any and all taxes, except income taxes, imposed during or assessed by reason of this Contract or its performance, including but not limited to sales, excise or use taxes, shall be the sole responsibility of Client and paid by the Client when due. If EWR is required to pay any such tax as a result of any collection responsibility imposed on EWR, the Client shall indemnify, defend, and hold harmless EWR for said taxes. In the event that the Client claims it is tax exempt, Client will provide EWR a copy of its Tax Exemption Certificate as verification of its exemption upon execution of this Agreement. Upon receipt of a Tax Exemption Certificate, EWR shall honor the Tax Exemption Certificate, however, EWR assumes no responsibility for any taxes which are assessed against the Services as a result of a determination by the relevant taxing authority that the Tax Exemption Certificate was improperly obtained by or issued to Client.
The Parties shall keep in full force and effect at all times during the term of this Contract workers’ compensation insurance coverage on their respective employees who are assigned to work based on any Statement of Work. The Parties also agree to keep in full force and effect at all times during the term of this Contract a comprehensive liability insurance policy with coverage amounts as are customary for businesses of the type and size of the Parties.
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
Neither Party shall be held liable for failure to fulfill its obligations under the Contract, if such failure is caused by flood, communications failure, power outages, extreme weather, fire, or other natural calamity, or similar significant causes beyond the reasonable control of such Party.
13. Complete Agreement
The provisions of this Contract contain the entire agreement between the Parties hereto and supersede all prior agreements, oral or written, with respect to the matters covered herein. No other agreements, representations, warranties or others, oral or written, purportedly agreed to or represented by or on behalf of EWR by any of its employees or agents or contained in sales materials or brochures, shall be deemed to bind the Parties hereto with respect to the subject matter. Client acknowledges that it is entering into this Agreement solely on the basis of the representations contained herein. These Terms are subject to change as posted on the Internet at:https://www.ewrdigital.com/terms-of-service which terms and conditons are incorporated herein to the extent that they differ from this 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.
If any provision of this Contract is held by a court of competent jurisdiction to be unenforceable, the remaining provisions of the Contract will remain in full force and effect.
Failure by either Party at any time to require performance by the other Party or to claim a breach of any provision of this Contract will not be construed as a waiver of any subsequent breach nor affect the intent of this Contract, nor any part thereof, nor prejudice either Party as regards to any subsequent action.
Any notice or payment required or permitted to be made or given by either Party hereto pursuant to the Contract will be sufficiently made or given on the date of issuance if sent by such Party to the other Party by mail, email, telecopy, commercial courier, personal delivery or a similar reliable delivery method, addressed as set forth below, or to such other address as the Parties shall designate by written notice given to the other Party.
Notices to EWR should be sent to:
E-Webstyle.com, LLC d/b/a EWR Digital
13105 Northwest Freeway Suite 765
Houston, TX 77040