Blizzard Internet Marketing Terms of Service
References to Blizzard shall hereafter include Blizzard Internet Marketing, Inc., its owners, employees, contractors, service providers, partners, successors and assigns.
SECTION 1 SERVICES AGREEMENT. Blizzard agrees to provide and Client agrees to pay for the services requested by Client in accordance with the terms and conditions in their agreement, including any attachments or addendums, which is hereby expressly made a part of this Client Agreement (collectively referred to as the “Agreement”). Services added subsequent to the execution of this Agreement by a written Addendum signed by the parties shall be governed by the same terms and conditions of this Agreement.
1.1 Terms and Conditions. Blizzard charges against the Client’s account for projects by the hour, month, quarter or year based on the specific project outlined in the Agreement. Services provided with scheduled payment terms will commence upon receipt of Client’s initial payment and receipt of signed Agreement. A written termination notice is required to stop all ongoing projects.
- Invoices are payable upon receipt or by specified due date. Invoices not paid within thirty (30) days from a specified due date will be in default, and will accrue interest at the rate of 1.5% per month or $5.00 per month, whichever is more. A $25 fee will be assessed to each check returned for insufficient funds. Unless alternative payment arrangements are agreed to in writing by Blizzard, invoices not paid within forty-five (45) days can be referred for collection, all services interrupted and Agreement may be terminated by Blizzard. All costs and expenses of collection, including fees and charges attributable to Blizzard staff time spent on collection efforts, travel, meals and lodging expenses, court costs and attorneys’ fees, and costs incurred by Blizzard, shall be paid by the Client.
- Payment delays may cause a delay in the services being delivered.
- Blizzard is subject to fees and charges imposed by third-party vendors, which can change rates to be paid by Blizzard without notice. All rates charged to the Client under this Agreement are similarly subject to change by Blizzard with notice to Client.
- Client is responsible for charges accrued by Client’s third-party designers, consultants, or web hosts.
- Blizzard reserves the right, and Client hereby expressly authorizes Blizzard, to run a credit check to verify Client’s creditworthiness and to terminate this Agreement if, in Blizzard’s sole and absolute discretion, Client’s credit report reveals poor credit or cause for concern.
- Blizzard will retain client website data for no longer than 30 days after cancellation.
- Except for refunds of unused third-party vendor funds, refunds are not available unless decided at the sole discretion of Blizzard. Refunds awarded are subject to a 5% administrative fee. Unused third-party vendor funds held on account with Blizzard are refundable without any administrative fee.
- Client is required to submit written notification to Blizzard no later than 30 days after change of ownership where ownership represents 51% or more of the Client business entered into this Agreement or any and all other businesses that may directly affect this Agreement.
1.2 Trademark, Copyright, & Ownership. Client expressly represents to Blizzard and unconditionally guarantees that the use of their primary and secondary domain name(s) as well as all elements of text, photos, graphics, designs, trademarks or other artwork submitted to Blizzard for publication are either owned by or licensed to Client for use. Client will indemnify, defend and hold Blizzard harmless from all liability, rights, claims, demands, damages, costs, expenses, actions, causes of action, suits of liability and controversies of every kind and description whatsoever, whether arising out of tort, contract, statute or otherwise, related to or arising from Blizzard’s design, hosting and marketing services, including without limitation all attorneys’ and expert fees, and all travel, hotel and meal expenses incurred by Blizzard.
- Upon full payment for work performed by Blizzard pursuant to this Agreement unless otherwise noted in Statement of Work, Client will own any and all digital work created by Blizzard, including all text, photos and coding. Blizzard will not copyright any work completed for Client in Blizzard’s name. Should Client fail to pay in full for work performed by Blizzard, including all work performed in arrears, Blizzard shall retain all ownership rights pending receipt of full payment.
1.3 Acceptable Use Policy: Restriction Against SPAM and Offensive Content. Client may not use Blizzard’s servers for the purpose of mass electronic junk mail (SPAM). Client may not use Blizzard’s servers to disseminate content deemed in Blizzard’s sole and absolute discretion to be of a pornographic, racist, violent or otherwise offensive nature. Immediate termination of Client’s use of Blizzard’s servers will result, without notice to Client, for use of Blizzard’s servers in violation of this Agreement. In such event, Client will indemnify, defend and hold Blizzard harmless from all liability, rights, claims, demands, damages, costs, expenses, actions, causes of action, suits of liability and controversies of every kind and description whatsoever, whether arising out of tort, contract, statute or otherwise, related to or arising from Blizzard’s design, hosting and marketing services, including without limitation all attorneys’ and expert fees, and all travel, hotel and meal expenses incurred by Blizzard which are, related to or arise from Blizzard’s hosting of any pornographic, racist, violent or otherwise offensive content published by the Client.
1.4 Limitation of Liability. Blizzard’s total liability under this Agreement shall not exceed the total compensation received under this Agreement. To the fullest extent permitted by law, and notwithstanding any other provision of this Agreement, the total liability, in the aggregate, of Blizzard and Blizzard’s officers, directors, partners, employees, agents, and consultants, and any of them, to Client and anyone claiming by, through, or under Client for any and all claims, losses, costs, or damages whatsoever arising out of, resulting from, or in any way related to this Agreement from any cause or causes, including but not limited to the negligence, professional errors or omissions, strict liability or breach of contract, or warranty express or implied of Blizzard or Blizzard’s officers, directors, partners, employees, agents, or consultants, or any of them, shall not exceed the total compensation received by Blizzard under this Agreement.
- Blizzard practices all tactics necessary to be compliant with the current regulations of the Payment Card Industry (PCI) Data Security Standards with regard to its clients’ credit card numbers that are stored for payment of invoices from Blizzard. Blizzard utilizes storage and disposal procedures to prevent improper disclosure of Client credit card information.
- Client agrees to not hold Blizzard liable for any indirect, incidental, special or consequential damages arising out of use of the services, or inability to gain access to or use the services. Blizzard will not be liable for any material of third-party websites it submits to as part of the services. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you. In such states, the respective liability of Blizzard is limited to the greatest extent permitted by such state law.
- If Blizzard does not host Client’s website(s), Blizzard cannot be responsible for Client’s data integrity and Blizzard disclaims liability for Client’s data, files, or directories residing on provider’s equipment. Client is solely responsible for maintaining data, file, directory structure and data back-ups and restoration.
1.5 Terms and Termination. Subject to the terms and conditions of Section 1.1, above, this Agreement shall remain in effect for the duration of the services outlined in the Statements of Work, Attachments and/or Addendums. Either party may terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice from the non-breaching party. Verbal abuse may be considered breach of contract and will be given thirty (30) days to resolve.
- Either party may terminate this Agreement by providing notice in writing thirty (30) days prior to the end term length outlined in the Attachments. Blizzard may work into arrears in expectation of future payments under the terms of this Agreement. For this reason, Blizzard reserves the right to wind down or discontinue services during the termination period in an effort to bring the account out of arrears.
1.6 Force Majeure. Blizzard shall not be liable to Client for damages for any failure or delay in performance under this Agreement caused directly or indirectly by technology or forces out of the company’s control. Client shall not receive any credit on account in connection with any failure or deficiency of website availability caused by or associated with the following items:
- Circumstances beyond Blizzard’s control, including war, strike or other labor disturbance, unavailability/interruption/delay in telecommunications, computer viruses, hacker attacks, third-party software failure (free scripts, e-commerce software, Merchant Gateways), fire, flood, tornado, tsunami, earthquakes, acts by any governing body, embargo, boycott, or inability to obtain supplies, raw materials, or power used in or equipment needed for Blizzard’s performance of this Agreement.
- Failure of access circuits to beyond Blizzard’s servers control, unless the failure is caused solely by Blizzard.
- Emergency maintenance, scheduled maintenance, and system upgrades.
- Domain name system (DNS) problems outside of the control of Blizzard.
- Client’s acts or omissions (or acts or omissions of others engaged or authorized by Client), including, without limitation, custom scripting, any negligence, willful misconduct, or use of the Services in breach of Blizzard’s Acceptable Use Policy set forth in Section 4, above.
- Problems elsewhere on the Internet that prohibits Client from viewing Client’s account, such as browser, DNS, or other caching that might make it appear that Client’s website is unavailable even though others can still access Client’s information. This policy covers the area Blizzard controls: the web server.
1.7 Remedies/Arbitration. Both parties agree that in the event it becomes necessary to interpret or enforce any provision of this Agreement, any claims, disputes or other matters in question between the parties arising out of this Agreement shall be subject to and decided under the laws of the State of Colorado by binding arbitration in Glenwood Springs, Colorado, in accordance with the rules of the American Arbitration Association then in effect unless the parties mutually agree otherwise. The parties shall be equally responsible for all costs and expenses related to the Arbitrator’s selection, compensation, travel, operation of and expenses incurred in connection with the arbitration proceeding (collectively, “Arbitrator’s Costs”). The Arbitrator’s decision shall be final, binding upon the parties and non-appealable. Judgment may be entered upon the Arbitrator’s decision in accordance with applicable law in any court having jurisdiction thereof. Any decision of the Arbitrator shall include an award to the prevailing party for reimbursement of their reasonable expenses incurred in connection with the party’s participation in the arbitration proceeding, including but not limited to attorney fees, expert witness fees, travel, lodging and meal expenses, and the prevailing party’s share of the Arbitrator’s Costs.
1.8 Miscellaneous. This Agreement shall be construed in accordance with the laws of the State of Colorado. Each and every provision of this Agreement has been independently, separately and freely negotiated by the parties as if this Agreement were drafted by all parties hereto. The parties, therefore, waive any statutory or common law presumption which would serve to have this document construed in favor of, or against, either party. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.
1.9 Non-Recruitment of Employees. The parties agree that during the term of this Agreement, and all renewals of this Agreement, and for one (1) year thereafter, neither party will, except with the consent of the other party, directly or indirectly recruit, solicit or employ any employees of the other party.