This AGREEMENT is in effect as of the date of purchase, between the purchaser of an AcuPerfect Websites website, hereafter referred to as “Client” and Acupuncture Media Works, LLC, a Washington limited liability company, hereafter referred to as “AMW”. This agreement is with respect to the design of Client’s website, hereinafter referred to as the “Work” and to the maintenance and management of Client’s website, hereinafter referred to as the “Service.” By purchasing this product, the Client agrees to the following:
MODIFICATION OF TERMS:
We may modify these terms or any additional terms that apply to the Service to, for example, reflect changes to the law or changes to our services. You should review the terms regularly. We will notify all Clients via email when changes are made to these terms. Changes to these Terms of Services will be effective immediately. If you do not agree to the modified terms of service, you should discontinue your account with AMW.
The Client and AMW may disclose confidential information one to the other to facilitate work under this Agreement. Such information shall be so identified in writing at the time of its transmittal, and shall be safeguarded and not disclosed to third parties by the receiving party. Confidential information shall not include information that:
is already known to the party to which it is disclosed;
is or becomes part of the public domain without breach of this Agreement;
is obtained from third parties, which have no obligations to keep confidential to the parties to this Agreement.
Data stored or transmitted via AMW servers or websites may not be encrypted or secure. AMW does not make any express or implied guarantees, warranties or promises regarding the security or encryption of data displayed, transmitted or stored on its servers or sites.
HIPAA COMPLIANCE WARNING:
Clients are hereby notified that the Health Insurance Portability and Accountability Act (“HIPAA”) does not allow for the sharing or transmission of unsecured or unencrypted electronic information via a website or electronic mail or other electronic means. Therefore, it is not a lawful use of AMW’s service to use or allow third parties to use unsecured web contact forms for the transmission of confidential health information. By using the Service, you agree to indemnify AMW and hold AMW harmless for any unlawful use of unsecured web contact forms on its sites for the transmission of confidential health data by you or your employees, agents, contractors, customers or clients
We utilize a reputable Americans With Disabilities Act (“ADA”) Accessibility plugin in a reasonable effort to comply with the WCAG 2.0/2.1 AA website accessibility standards. We also make this ADA-Accessibility plugin available to our Clients for use on their own websites upon request. However, we do not guarantee that use of ADA accessibility plugins will ensure complete ADA accessibility for either our website or our Client’s websites. You agree to indemnify AMW and hold AMW harmless from any and all claims of damage or harm related to, or resulting from, any alleged failure or lack of ADA accessibility, either on AMW’s website or Client’s website(s).
The Client shall pay AMW on a monthly or annual basis. Any one-time setup fees collected are non-refundable. The Client can cancel service at any time (see TERMINATION below).
RESERVATION OF RIGHTS:
All rights not expressly granted hereunder are reserved to AMW, including but not limited to all ownership and intellectual property rights in sketches, comps, or other preliminary materials.
PERMISSIONS AND RELEASES:
The Client agrees to indemnify and hold harmless AMW against any and all claims, costs, and expenses, including attorney’s fees, due to materials included in the Work at the request of the Client, or materials added to the Work by the Client, for which no copyright permission or previous release was requested or obtained which exceed the uses allowed pursuant to a permission or release. The Client agrees to obtain “Written Permission” for any third party (any entity Client contacts for use of copyrighted materials) copyrighted materials including artwork, photos, text, articles or any other copyrighted materials that are protected under US copyright laws. AMW reserves the right to request copies of “Written Permission” of Client’s third-party copyrighted materials including artwork, photos, text, articles or any other copyrighted materials that are protected under US copyright laws.
“Written Permission” is a legal document furnished by the Client requesting use of third-party copyrighted materials including artwork, photos, text, articles or any other copyrighted materials that are from the third-party.
Copyright to the finished assembled work of websites produced by AMW is owned by AMW. The client is assigned rights to use as a website the design, graphics, and text contained in the finished assembled website as long as the agreed payment is fulfilled. Rights to photos, graphics, source code, work-up files, and computer programs are specifically not transferred to the client, and remain the property of their respective owners.
AMW retains the right to display graphics and other Web design elements as examples of their work.
AMW reserves the right to remove and/or refuse hosting services to Clients who host or display Adult Content on Client Websites. If content is graphic and explicit in nature (for example, an image which contains nudity, sexuality, or violence), it is subject to removal by AMW without notice.
The Client may cancel service at any time with by giving notice of cancellation to AMW. In the event that service is canceled, the Client’s website will be disabled at the conclusion of the latest paid billing cycle.
Refunds: Prorated refunds are available at the Client’s request. Early cancellations of the annual plan will be refunded at the existing monthly rate.
If payment is declined due to a credit card that is expired, canceled, etc., AMW will give notice to Client and Client will be given fourteen (14) days to update payment method. If payment is not made by the end of this grace period, Client’s website(s) will be disabled.
The files and databases of the website will be retained by AMW for a minimum of three (3) months. If service is reinstated after the website is disabled, AMW will put forth its best effort to publish the website as close to the same condition as it was when the website was disabled.
The Client and AMW are independent parties and nothing in this Agreement shall constitute either party as the employer, principal or partner of or joint venture with the other party. Neither the Client nor AMW has any authority to assume or create any obligation or liability, either express or implied, on behalf of the other.
AMW reserves the right to terminate the Client’s account at any time without a refund. Reasons for termination include, but are not limited to:
- Failure to comply with AMW’s Terms of Service or this Agreement
- Installation of files, plugins, or code that use excessive bandwidth or server resources
- Sending of bulk email, spam or otherwise, using an AMW provided email address or AMW’s servers
- Use of materials that infringe the trademarks, copyrights, patents, or other intellectual property rights of any third party
If a change made in the provision of the Terms of Service involves action on the part of Client and Client does not take action, AMW is entitled to terminate Client’s account without notice.
AMW makes no promise of specific results regarding its services described herein. Specifically, AMW cannot and does not guarantee any specific results regarding search-engine optimization (“SEO”) or ranking of its websites provided under this Agreement. Any changes made to a website by AMW or Client may increase, decrease or otherwise affect a website’s search engine ranking, along with other factors and AMW is not responsible for changes in search engine ranking of Client websites.
AMW will do it’s best to source accurate information for content (text, articles, blog posts, etc.) that is provided with the website service, however this content may include inaccuracies or typographical errors.
Client agrees and specifically warrants by entering into this Agreement that the individual entering into this Agreement has authority to enter into agreements on behalf of the entity for whom services will be rendered by AMW.
GOVERNING LAW AND VENUE:
This Agreement shall be construed consistent with, and governed by, the laws of the State of Washington. Venue for any proceeding arising out of this Agreement shall be in the Superior Court of Whatcom County, Washington. The terms of this Agreement are contractual and not merely recitals. The order in which paragraphs appear in this Agreement has no significance, whatsoever.
ENFORCEMENT OF TERMS/ATTORNEYS’ FEES:
If any Party to this Agreement has retained an attorney to bring suit or seek arbitration to enforce any provision, the prevailing Party shall be entitled to his/her reasonable attorneys’ fees and costs incurred, regardless if the matter proceeds to judgment or is resolved by the defaulting Party or Parties curing the default.
In the event, suit or collection is instituted to collect on this contract or any part thereof, the individual entering into this Agreement on behalf of Client personally agrees to pay the entire unpaid balance with reasonable attorney’s fees, penalties and court cost incurred by AMW or its assignees. Venue shall lie in Whatcom County, Washington.
In the event of a dispute between the Parties, any Party may notify the others of his or her desire to submit the dispute to non-binding mediation.
If the other Parties agree to mediation, then the Parties shall mutually select a mediator, and have the dispute mediated within fifteen (15) days. If, however, one of the Parties fails to respond or rejects mediation, then the Parties shall submit the dispute to arbitration, pursuant to RCW Chapter 7.04A.
In the event of a dispute arising out of or in connection with these terms or any contract between AMW and Client, then Client agrees to attempt to settle the dispute by engaging in good-faith with AMW in a process of mediation before commencing arbitration or litigation.
In the event that arbitration becomes necessary, the Parties shall, within ten (10) days, select an independent and unbiased arbitrator who is not affiliated, directly or indirectly, with any Party. If the Parties fail to select, or cannot agree upon, an arbitrator within this time, then either Party may apply to the Superior Court of Whatcom County, pursuant to RCW 7.04A et seq., for an order appointing an arbitrator. Upon application to the court for an arbitrator, the court shall select an arbitrator, who shall render his/her decision no later than 60 days after his/her appointment. If the arbitrator requests a hearing prior to rendering his/her decision, such hearing shall be held in Whatcom County, Washington within 30 days of the arbitrator’s appointment. The arbitrator’s decision shall be binding on both Parties. Subject to the attorney fees and cost award provisions set forth above, each Parties shall initially bear his/her/its expenses associated with the arbitration, but shall share equally the cost of the arbitrator.
The prevailing Party, as determined by the arbitrator, shall be entitled to an award of his/its reasonable attorney’s fees and costs, including expert witness fees. Each Party shall split equally the costs of the arbitration. The prevailing Party shall be entitled to have any arbitration award confirmed by the Whatcom County Superior Court in the manner provided by RCW 7.04A.250 and to enforce such judgment. For purposes of this statute, the Parties agree that any award shall be within the jurisdiction of the Whatcom County Superior Court.