These terms and conditions are an essential part of the Custom Website Agreement between American Marketing & Publishing, LLC (hereinafter “Publisher”) and the party named on the Custom Website Agreement (hereinafter “Customer”) and describe the rights and obligations of the Publisher and Customer applicable to Website Development, Maintenance and Hosting Services (“Services”) to be provided by Publisher to Customer.
Publisher will design, build, and host a custom website (“Website”) for Customer and will purchase a domain name (universal resource locator or URL) to be used by Publisher to publicly display Customer’s Website. Publisher will maintain the Website for the period for which Services are purchased. Once a domain name is acquired by Publisher for Customer’s use it may not be changed or exchanged. The universal resource locator is the property of Publisher.
Staged Consultation, Design, Review, Maintenance and Change Orders. Publisher will review information, notes, images, content, ideas and other materials provided by Customer and will commence website design work following consultation with the Customer. Customer agrees to provide sufficient copy, direction, imagery, and other content and consistent feedback (“Content”) and to take or promptly return consultation calls from Publisher during Publisher’s process of developing the website so as to enable Publisher to perform this work in an efficient manner. Publisher will perform the Services with the objective of staying within the website services program purchased by the Customer. If Publisher is unable to contact Customer to undertake the consultation after reasonable and diligent effort, Publisher may proceed to create the Website without further consultation. Once the Website is completed, Publisher will send Customer a link to the Website so that Customer can review it at a non-public preview web address. Customer will then have five business days to respond via telephone or email with feedback, changes, or confirmation that the Website is acceptable to be hosted publicly. Once necessary changes are implemented or confirmation is received that the website is acceptable the site will be hosted and publicly viewable. If Publisher receives no response from Customer after five (5) working days, Publisher will assume that the Website is acceptable and will publish it to the domain selected.
All website design and build work, including the initial Website design and Customer changes, will be reviewed to determine if they are within the original website services program purchased, or if they require the Customer to purchase a more comprehensive website services program at a higher price via a Change Order.
Content updates or small textual changes (including colors, misspellings, products, services, specialties, or replacing similarly sized images) will be made regularly as a part of standard website maintenance, as requested by the Customer from time to time either verbally or in writing, or as part of the Premium OPTIMA™ program. Such “maintenance changes” are a part of all website program services.
More complex changes to a Website for such requests as (without limitation) complex content and/or page changes, complex menu or navigation changes, modifying the arrangement or display of imagery, adding of widgets, plug-ins, other functionality, or additional pages will require a Change Order. Whether for significant changes in scope that require a program change or additional cost or for a significant re-design of the website, Publisher and Customer will exchange a Change Order that describes what increased scope or redesign is requested. Based on the scope of the changes, Publisher will provide an estimate of the costs associated with making these changes for confirmation by Customer, and once payment is received Publisher will commence the requested work. Customer and Publisher intend that the General Terms & Conditions contained in this agreement, including those incorporated by reference as they are modified from time to time, shall apply to Change Orders.
Custom Website Services Payment Terms. Customer agrees to pay for the Services as designated in the Custom Website Agreement and herein. Payment for the Design & Build Fee may be made with a one-time payment or with a two part payment. In the event that Customer has agreed to a one-time Design & Build Fee the fee will be paid by Customer upon execution of this agreement. In the event that Customer has agreed to a two part Design & Build Fee, the first half will be paid upon execution of this agreement and the other half will be paid upon Publisher’s initial publicly accessible hosting of the completed site. The Design & Build Fee and any fees associated with a Change Order(s) will be paid by check, credit card, or ACH. Fees paid are non-refundable. Unless Customer elects to pay on a recurring annual basis in advance for Premium OPTIMA™ Services and Website Services, all Website Services include a Recurring Monthly Fee for hosting, maintenance, and data management integration of the Website Services with the Premium OPTIMA™ program. Depending on services purchased, the Recurring Monthly Fee may be increased to reflect the cost of plug-ins, widget fees, and other specific Customer requested custom features. To ensure continued and uninterrupted Customer and consumer access to the Services described in this agreement, Advertiser’s payment for the Services will be continually charged in the case of a credit card payment or debited in the case of an ACH payment by Publisher on a recurring monthly basis, in advance, beginning 30 days after the date of purchase until such time as either Publisher or Advertiser choose to terminate the Services. .
Termination of Services. Customer may initiate cancellation of the Recurring Monthly Fees at any time by submitting a request to cancel Custom Website Services through Publisher’s website (www.ampcorporatetest.com/upgradeorcancellationrequest/) and upon Publisher verification as described in the terms and conditions of this agreement. Publisher requires verbal confirmation of cancellation requests for validation and as a security precaution, and confirms website-initiated written requests in a recorded telephonic conversation on a same-business-day or next-business-day basis. In the event that a cancellation cannot be verbally confirmed and telephonically recorded in a series of two or more telephone calls to Advertiser initiated by Publisher after two business days, Publisher will initiate a second series of up to three additional calls to the Advertiser over the next four business days, after which the cancellation request will be disregarded in the event that Publisher’s attempts to verbally confirm a cancellation request have been unsuccessful. Cancellations first become effective upon the date of recorded verbal confirmation of the cancellation. Upon cancellation, Services will be discontinued at the end of the period last paid for by Advertiser so long as confirmation was received at least two (2) business days prior to the next monthly billing date. In the event that a cancellation is confirmed on or one day prior to a billing date, cancellation of Services will not become effective until the end of that 30 day period. Publisher reserves the right to cancel Services upon notice to Customer. In the event that such a cancellation is without cause by Customer, Publisher return any ratable portion of the final monthly payment reflecting the prepaid period for which Custom Website Services were not provided. In the event that Advertiser cancels Custom Website Services, ceases to remain a continuing Premium OPTIMA™ client, fails to furnish payment or payments on a timely basis to facilitate Publisher’s ongoing provision of Services, Publisher may temporarily or permanently discontinue the Services. At that point, the website will become inaccessible to Customer and the public. The general terms and conditions of this agreement will continue to remain in force for a period of 36 months after Services have been cancelled. Upon cancellation of Custom Website Services, so long as Customer has paid Publisher in full for all services that are the subject of this or any other agreement between the parties, then upon written request by Customer and the furnishing and execution of appropriate forms acceptable to Publisher by Customer, Publisher agrees that it will transfer the domain name it owns and uses or used to host Advertiser’s website to Advertiser for a one-time fee of $175.00.
INTELLECTUAL PROPERTY AND ACCEPTABLE USE: Customer agrees that Publisher retains all right, title, and interest in and to the Services, including all universal resource locator addresses paid for by Publisher, all intellectual property, and all other proprietary rights therein. Customer agrees to ensure the accuracy of all materials provided to Publisher for incorporation in the Website including, without limitation, content, claims, warranties, nature of business and contact information for Customer. Customer further agrees that it is responsible for ensuring that the Website conforms to all local, state and Federal laws. Customer represents and warrants that it has secured permission to use, duplicate, display and distribute any copyrighted or trademarked content of any sort submitted by Customer or by a third party with Customer’s knowledge. Customer assumes sole responsibility for (i) the protection of the trade names, trademarks, trade secrets, service marks, copyrights, and other intellectual property rights in any Content appearing in a the website provided by Publisher; (ii) conducting any copyright and trademark searches and other similar activities which may be necessary in relation to any domain name used in connection with the Custom Website Services (including those that Publisher obtains and uses to host Customer’s website on); and (iii) ensuring that appropriate copyright and trademark notices are used in connection with the Services if required. Customer shall be solely responsible for any and all of Customer’s content used in the connection with the Services, including content owned by third parties that is gathered by or submitted for display or distribution by Publisher or by Customer in connection with the Services, and for the consequences of, and requirements for, displaying or distributing it. In the event that Customer directs Publisher in writing to remove or edit such information, imagery, reviews, or other content from Customer’s website, Publisher will make commercially reasonable efforts to promptly comply with Customer’s instructions.
Customer and Publisher agree that any and all content (including without limitation the text, software, scripts, source code, photos, graphics, files, records, sound, domain names, and data) used by Customer, third parties, or Publisher in providing the Services that is not copyrighted or trademarked by Customer or a third party when it is first used to create the Services is owned by or licensed to Publisher from Customer during the period that Services are provided, and is subject to Publisher’s copyright, trademark, and other intellectual property rights. Publisher is not responsible for returning Customer files, documents or other items provided by Customer. The design elements, photos, software, methods of arranging or displaying information, reviews, and other data, content contributed to Customer’s website, and any other creative elements are the exclusive property of Publisher. Publisher shall own exclusive rights (including all intellectual property and other proprietary rights) to any submissions provided to Publisher by third parties by any method, and shall be entitled to the unrestricted use and dissemination of any such third party submissions provided for any purpose, commercial or otherwise, without acknowledgment or compensation to Customer. Customer grants Publisher a royalty-free, worldwide, perpetual, and irrevocable right and license to freely copy, modify, display, transmit, use and share (i) Customer’s website, website content, feedback and suggestions, user generated content, and other data related to results of their marketing efforts for any lawful purpose during the period that Services are provided, and (ii) Customer’s name, logo, likeness, testimonials, endorsements and other feedback as part of Publisher’s advertisements, trainings, marketing, and other publicity efforts.
Customer agrees that Publisher will have the continuing right, in the exercise of its sole discretion, to review, select from or among, revise or reject any content proposed or recommended by Customer for any reason. Notwithstanding such right, Publisher will have no liability whatsoever to Customer or any third party for any content included in the Custom Website Services and Customer shall be solely and exclusively liable for such content. Publisher has the right to remove any content at its sole discretion. Customer bears all risk associated with the use of any content.
No Warranty, Disclaimer and Limitation of Liability. Publisher makes no representation, warranty or guarantee, express or implied, concerning the Custom Website Services, except as set forth herein. Publisher expressly disclaims all other warranties, express or implied, including without limitation any warranty of merchantability and fitness for a particular purpose. Customer and Publisher agree that Publisher shall not be liable for any consequential, special, indirect, exemplary, punitive, or other damages whether in contract, tort or any other legal theory, even if advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy. Publisher’s aggregate liability to Customer is limited to the greater of amounts paid by Customer to Publisher in either (ab) the four month period prior to the filing of the claim, or (b) the four month period prior to the happening of events giving rise to the claim.
Indemnification. Customer shall indemnify and defend Publisher, its agents, affiliates, and licensors from all claims, liabilities, damages, costs and expenses, including reasonable attorneys’ fees and expenses, and third party claim or liability (collectively, “Liabilities”) arising out of Customer’s use of the Services, Website, or Customer’s breach of this agreement. Specifically, Customer agrees to defend, indemnify, and hold harmless Publisher, its agents, affiliates, and licensors from, against, and in respect of: (i) any and all losses, damages or deficiencies resulting from any third party claim in connection with Custom Website Services and (ii) all costs and expenses incident to any and all actions, suits, proceedings, claims, demands, assessments, or judgments in respect thereof regardless of the merit thereof, including reasonable attorneys’ fees and expenses.
Availability of Services. Publisher shall not be liable for any default or delay in the performance of any of its obligations under this Agreement if such default or delay is caused, directly or indirectly, by forces beyond Publisher’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, power outages, failure of internet service, servers or mechanical equipment , supply shortages or the failure of Customer or any third party to perform any commitment relating to the Publisher’s ability to perform Services hereunder. Customer acknowledges and agrees that from time to time the Website may be inaccessible or inoperable for various reasons, including but not limited to (i) maintenance procedures or repairs performed by Publisher; (ii) equipment failures; (iii) congestion of the network; or (iv) interruption of telecommunication or digital transmission link. Customer acknowledges and agrees that Publisher is not liable for these periodic interruptions in Website availability and further acknowledges that Publisher does not guarantee Website accessibility on a continuous and uninterrupted basis. Publisher shall use commercially reasonable efforts to attempt to provide the Services in a manner that will not disrupt Customer’s business.