These Terms and Conditions are between Omnizant, LLC (“Omnizant”, “us”, “we” or “our”) and the Client (“you” or “your”) identified in applicable Schedule(s). Together, the Schedule(s) and these Terms and Conditions are the “Agreement.” The Agreement is effective as of the date both Omnizant and you sign the applicable Schedule(s).
1. Services
“Services” shall mean the professional and other services performed by us, as outlined in the Schedule(s) attached to the accompanying proposal.
2. Fees and Payment Schedule
A. Fees
“Fees” shall mean the amounts outlined in the Schedule(s) in the accompanying proposal. All Fees are non-refundable. Fees for ongoing services are billed each consecutive month or annually, at the beginning of each renewal Term, as set forth in the applicable Schedule(s). We only accept ACH or credit cards for any installment payments or ongoing Fees.
B. Vendor Accounts
We may integrate third-party tools as part of our Services as set forth in the applicable Schedule(s). Such technology will be included as part of your on-going Fees.
3. Mutual Cooperation
Our ability to provide you with the Services depends on your cooperation and assistance. You agree that you will be reasonably available to us, to review and respond to our communications, and to approve materials on a timely basis. Failure to respond on a timely basis will result in a corresponding extension of the promised timelines. If, for any reason, you fail to respond for a period of thirty (30) days, we may put your work on “Inactive” status. While Inactive, all work by us will stop and we will no longer be obligated to deliver on quoted deadlines, and you will still be required to make all payments as set forth herein. To leave Inactive status, you will be required to (a) provide all outstanding requests, (b) be up-to-date on all payments due, and (c) pay a Resumption Fee of $500. Once your project has been resumed, we will provide you with updated timeframes/deadlines for delivering Services. If, however, you and we mutually agree to put your Services on hold (e.g., due to trial deadlines, scheduling issues, etc.), no Resumption Fee will apply.
4. Intellectual Property Ownership
A. Your Rights
Our Services, except for our Toolkit, have been specially ordered and commissioned by you and is considered “work for hire.” You will be deemed the sole author of your Site and its content, except for stock content from our content library and photography provided by us to you (“Stock Photography”).
B. Our Retained Rights
While you own the HTML markup and custom content we create for you, you do not own other code, graphics or non-custom content provided to you by us, nor their attendant intellectual property rights, where such code or graphics that were created,acquired or licensed by us in order to provide our Services (our “Toolkit”). You will be granted a non-exclusive, limited license to use such Toolkit attributes. In addition, we may have greater update and access rights to certain plug-ins and other development tools. Those rights do not transfer to you if you should move your Site from our hosting platform.
You agree to carefully read all content that we provide for your Site to ensure it is accurate and appropriate for your firm.
C. Image Licensing
We may obtain media licenses for photos, graphics or videos, from stock media vendors on your behalf as part of our Services (“Licensed Media”). Your continued use of any Licensed Media is subject to the terms of the respective stock media vendor.
5. Confidentiality
A. Confidential Information
While performing Services, we may come into possession of information that comprises valuable trade secrets and other confidential information (“Confidential Information”) of the other. We mutually agree that the information is being conveyed under conditions of confidentiality and both you and we agree to keep the information confidential and not disclose it except as otherwise permitted by this Agreement during the term of this Agreement and for a period of three (3) years after its termination for any reason.
Notwithstanding the above, you agree to refrain from sharing with us sensitive information that is not necessary in order for us to deliver our Services.
B. Exclusions
Confidential Information does not and shall not be deemed to include information which (i) was actually known by the party before receipt from the other party, (ii) is or becomes generally available to the public other than as a result of disclosure by a party, (iii) was already within a party’s possession prior to the date of this Agreement, (iv) becomes available from a source that is not bound by a confidentiality agreement, and/or (v) is permitted to be disclosed by us in the performance of our Services.
6. Our Representations and Warranties
A. Our Services
We represent and warrant that the Services provided by us will be provided in a professional manner, in compliance with applicable law, in conformity with generally prevailing industry standards, and will not infringe any proprietary rights (including patents, copyrights, trademarks and trade secrets) of any other entity, provided, however, we make no guarantee or warranty the Services provided hereunder will be error free.
B. Browser Compatibility
Sites are designed and optimized for the most recent versions of Safari, Chrome, Edge and Firefox, and may not be fully functional on legacy browsers.
C. Disclaimer
EXCEPT AS SET FORTH HEREIN, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THAT THE SERVICES OR SITE WILL BE ERROR-FREE OR FREE FROM VULNERABILITIES, ACCURACY OF INFORMATIONAL CONTENT, COMPLIANCE WITH YOUR STATE BAR ETHICS RULES, MARKETABILITY, PROFITABILITY, SUITABILITY, COMPLIANCE WITH PRIVACY AND ACCESSIBILITY LAWS, INCLUDING ANY SERVICES PROVIDED BY OUR THIRD-PARTY PARTNERS OR SUPPLIERS, ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT.
7. Your Representations and Warranties
A. Ability to Enter Into Agreement
You represent and warrant that you have the right to enter into this Agreement and pay the Fees as set forth. You will provide us access to, and use of, all information, data and documentation we need for the performance of our Services under this Agreement. You will designate a project manager who will have the necessary knowledge and authority to collaborate with us so that we can effectively render our Services.
B. Your Materials
You represent and warrant that all information, materials or documents of any kind whatsoever, both oral and written, (“your Information”) provided to us in the performance of our Services do not and will not infringe or violate any patents, copyrights, trademarks or trade secrets of any third parties. Nor will any of your Information be obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, or menacing. You shall be solely responsible for the accuracy, completeness, and propriety of all of your Information and the Site. You shall also be solely responsible for your compliance with (i) all attorney marketing and advertising requirements of your state(s) of admission, and (ii) all privacy policies and disclaimers.
8. Your Payment Obligations
A. Late Payments
In the event that you do not make payment on a timely basis according to the payment schedule set out in the Schedule(s), we may, in our sole discretion, either (i) withhold Services until such payment is made and place you into “Hiatus”, as described below, or (ii) accelerate the Payment Schedule to cause all Fees to be due and payable immediately. In addition, any unpaid balance not paid in full within fifteen (15) days will incur interest at the annual rate of 12% from 15 days after the date of the invoice. In the unfortunate event we have to refer your account to our attorney or a collection agency for payment, you will owe us the total balance due plus thirty percent (30%) to cover our collection costs.
B. Insufficient Funds
You authorize us to debit the bank account or credit card provided and understand that because this is an electronic transaction, these funds may be withdrawn from your account on the transaction date. In the case of an ACH Transaction being rejected for Insufficient Funds, you understand that we may at our discretion attempt to process the charge again and you agree to an additional $25.00 charge for each attempt returned as insufficient funds, which will be initiated as a separate transaction from the authorized payment.
C. Disputing Charges
You agree that you will not dispute the payment with your credit card company or the bank, provided that the transaction corresponds with the Fees outlined in the applicable Schedule(s).
9. Indemnification
A. Your Indemnification
You acknowledge and agree that we cannot independently verify material supplied to us by you, and therefore to the fullest extent of the law you hereby agree to defend, indemnify and hold us harmless from and against any and all claims, losses, damages, liabilities, actions, causes of action, expenses (including reasonable attorneys’ fees) and any other legal liability of any kind, from and against all third parties which we incur arising directly or indirectly out of any of your Information, or material supplied by you.
B. Our Indemnification
We shall indemnify, defend and hold you harmless from and against any and all claims, losses, damages, liabilities, actions, causes of action, expenses and other legal liability from and against all third parties which you incur arising directly out of the Toolkit, provided that you (i) notify us in a timely fashion of such claim, (ii) you have not modified the deliverables provided to you, and (iii) the claim does not arise from or relate any of your Information, as defined above.
10. Limitation of Liability
IN NO CASE WILL OUR LIABILITY ON ANY CLAIM, LOSS OR LIABILITY ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE BY YOU TO US FOR THE SERVICES GIVING RISE TO SUCH CLAIM, LOSS, OR LIABILITY. FURTHER, IN NO CASE WILL WE BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT OR THE EXERCISE OF ITS RIGHTS OR THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, OR ANY LOST PROFITS ARISING OUT OF THIS AGREEMENT, IN EACH CASE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, NEGLIGENCE, BREACH OF STATUTORY DUTY, OR OTHERWISE, REGARDLESS OF ANY NOTICE OF SUCH DAMAGES.
11. Term and Termination
- A. “Term” shall mean the Term as outlined in the Schedule(s) attached hereto.
- B. Any Services in the Schedule that have recurring fees or auto-renewals for the Term must be paid by either a credit card or ACH transfer. You will be required to keep your credit card or ACH information up-to-date. Fees may increase by up to five percent (5%) on each annual renewal Term (this does not apply to multi-year Terms).
- C. We may immediately terminate this Agreement by written notice for Cause if, after we have notified you of the Cause, you have not corrected the situation within ten (10) days. “Cause” shall mean a material breach of this Agreement, including your payment obligations. In addition, we may immediately terminate this Agreement by written notice if you, or your staff, subject us or our staff to abusive, foul, harassing or threatening language or behavior.
- D. We may immediately terminate this Agreement by written notice if you become unable to pay due to bankruptcy, insolvency, liquidation, or other failure to pay your debts as they come due.
- E. Upon termination or our Services, we reserve the right to use self-help to the greatest extent permitted under the law, including, but not limited to, electronic remedies such as stopping marketing campaigns or taking your Site offline.
12. Displaying Our Work
We love to show off our work, so we reserve the right to display all aspects of our creative work, including the completed project on our portfolio and on websites, in magazine articles and in books. You agree that we may incorporate a link to our website and our logo on the bottom of your Site.
13. Entire Agreement
These Terms and Conditions and the signed Schedule(s) represents the entire agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, communications and agreements, whether written or oral, between you and us relating to the subject matter hereof and all past courses of dealing or industry custom. Notwithstanding anything to the contrary, these Terms and Conditions may be updated by us from time to time in our sole discretion with or without prior notice to you, and the term “Agreement” shall refer to your signed Schedule(s) and the latest version of these Terms and Conditions as posted on omnizant.com/termsandconditions.
14. Severability
If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or future law, then that provision will be fully severable. In such an instance, this Agreement will be construed and enforced as if the illegal, invalid, or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement will remain in full force and effect. Thereafter, you and we shall negotiate in good faith to a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
15. Waiver
No consent or waiver of any breach of default by you in the performance of your obligations under this Agreement shall be effective unless in a signed writing by us. Failure by us to complain of any act or to declare you in default, no matter how long such failure continues, shall constitute a waiver of our rights.
16. Force Majeure
Our failure to perform under this Agreement shall not subject us to any liability to you if such failure is caused by acts such as, but not limited to, acts of God, severe weather condition, serious medical condition, war, riot, sabotage, embargo, strikes or other labor trouble, civil disturbance, epidemic, pandemic, national emergency, restraint by governmental order, compliance with any order or regulation of any government entity, or by any cause beyond our reasonable control, provided that written notice of such event is provided to you within seven (7) days from the inception of such inability to perform.
17. Notices
From You
If any legal notice needs to be provided to us, it must be in writing and delivered via overnight commercial mail delivery service with tracking capability to our address as published on omnizant.com.
From Us
We will send legal notices to the primary address listed in this Agreement or the address published on your website.
All notices are effective upon delivery.
18. Governing Law
This Agreement is to be construed in accordance with and governed by the laws of the State of New York, excluding its conflict of laws rules.
19. Arbitration
Any dispute or controversy arising out of or related to this Agreement shall be submitted to binding arbitration with the American Arbitration Association in accordance with the then prevailing Commercial Dispute Resolution Rules and Procedures and the Fee Schedule in effect at the time the claim is filed to be held in Nassau County, New York, with the following exceptions if in conflict: (A) both you and we will pay a pro rata share of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator; and (B) arbitration may proceed in the absence of either you or us if written notice (pursuant to the arbitrator’s rules and regulations) of the proceeding has been given to both you and us. The parties agree to abide by all decisions and awards rendered in such proceedings, which shall include finding of facts and law by the arbitrator. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity, provided however, that nothing in this subsection shall be construed as precluding bringing an action for injunctive relief or other equitable relief. The arbitrator shall not have the right to award punitive damages or speculative damages to either party and shall not have the power to amend this Agreement.
IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BOTH YOU AND WE HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.
20. Counterparts
This Agreement and the corresponding Schedule (s) may be executed (including by facsimile and PDF signatures) in counterparts.
Version 2.0
Last Updated: 5/30/2023