1. Services
These Terms and Conditions, together with the Disclaimers attached hereto as Schedule A and the Service Descriptions attached hereto as Schedule B (collectively, the “Agreement”), govern Vigil Digital LLC' performance of the services set forth on the Services Agreement executed by the Customer. All defined terms herein shall have the meanings ascribed to them in the Services Agreement, except as expressly defined herein.
2. Payment
In the event that Company is more than five (5) days late in making any payment of the Service Fees, Company shall be charged a $25.00 penalty fee and shall be required to sign up for automatic payments via credit card unless otherwise agreed to by the parties. BY USING A CREDIT CARD, YOU HEREBY UNCONDITIONALLY WAIVE ANY AND ALL CHARGEBACK RIGHTS YOU MAY HAVE. If you deliberately or inadvertently issue a chargeback to your credit card, you shall pay Vigil Digital LLC a $50 processing and collection fee. Any Service Fees that are more than sixty (60) days delinquent shall accrue interest at a rate of 1.5% per month, or the maximum rate allowed by law, if less. Additionally, Vigil Digital LLC reserves the right to send any delinquent Service Fees to a collection agency.
In the event Vigil Digital LLC is required to investigate, review, or institute any action including, but not limited to, litigation in collection efforts at trial or appellate proceedings, Vigil Digital LLC shall be entitled to recover its attorneys’ fees and costs expended, in addition to any other remedies.
3. Terms
If Customer wants to terminate the Agreement immediately, Vigil Digital LLC will charge an early cancellation fee, equivalent to 50% of the total monthly fees, in addition to any other remedy available to Vigil Digital LLC in law and equity. In the event that either party terminates the Agreement before the end of the Term, Customer agrees to pay all fees due to Vigil Digital LLC through the date of termination within five (5) days after the date of termination.
4. Exclusivity
If the Services include a Local Search package (“SEO Services”), during the Term of this Agreement, Vigil Digital LLC will not provide SEO Services to any other business Vigil Digital LLC reasonably determines is competitive to Customer within the city in which Customer is located, or such other territory and/or category of business as agreed to in writing by the parties.
Except to the extent the Services include SEO Services, Customer acknowledges and agrees that Vigil Digital LLC is free to provide its services to any customer without limitation, regardless of whether any other such customer is competitive with the Customer.
5. Representations & Warranties
a. By Customer. Customer represents, warrants, covenants and agrees that: (1) Customer is duly organized, validly existing and in good standing, and is duly qualified and licensed to do business and to carry out its obligations under this Agreement, and that the execution, delivery and performance of this Agreement does not violate any existing agreement to which Customer is a party or by which Customer is bound; (2) Customer is the owner, or authorized licensee of, and has and shall have all right, title and interest in and to Customer’s content contained on its website; (3) all content on Customer’s website or otherwise provided or made available to Vigil Digital LLC in connection with the performance of this Agreement (“Customer Content”) does not infringe or misappropriate any patent, trademark, copyright, trade secret or other proprietary right of any third party; (4) Customer has obtained all authorizations and consents in connection with the Customer Content necessary for Vigil Digital LLC to perform its obligations and exercise its rights hereunder; (5) Customer’s use of the Services hereunder is in compliance with all laws, rules and regulations, including all privacy and marketing laws, rules, and regulations including the Telephone Consumer Protection Act; and (6) Customer’s use of the Services will not, infringe any trade name, trademark, trade secret, copyright or other rights of any third party.
b. By Vigil Digital LLC. Vigil Digital LLC represents, warrants, covenants and agrees that: (1) it is duly organized, validly existing and in good standing, and is duly qualified and licensed to do business and to carry out its obligations under this Agreement, and that the execution, delivery and performance of this Agreement does not violate any existing agreement to which it is a party or by which it is bound; (2) Vigil Digital LLC will provide the Services hereunder in compliance with all laws, rules and regulations, and such Services do not, and will not, infringe any trade name, trademark, trade secret, copyright or other rights of any third party. Vigil Digital LLC’s failure to perform any term or condition of this Agreement as a result of conditions beyond its reasonable control such as, but not limited to, war, strikes, fires, floods, acts of God, governmental restrictions, or damage or destruction (unless caused by Vigil Digital LLC) of any computer hardware, network facilities or servers, shall not be deemed a breach of this Agreement.
6. Disclaimers
Customer acknowledges and agrees that the Services provided under this Agreement are expressly subject to, and limited by, the disclaimers set forth on Schedule A, attached hereto and incorporated herein by reference, and that Vigil Digital LLC shall have no liability for any and all losses, liabilities, claims, costs, damages, and expenses that Customer may incur as a result of any circumstances described in the Disclaimers, or any other acts of third parties. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND Vigil Digital LLC HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES.
7. Work Made For Hire; License By Customer To Vigil Digital LLC
a. To the extent that Vigil Digital LLC is not utilizing third party or open-source property or material, any development or modification of Customer Content by Vigil Digital LLC under this Agreement, including any website screens, graphics, text or other website materials, programming code or documentation that is part of or related to such website materials, if any, to the extent uniquely related to the Customer Content, shall be considered a “work for hire” under the United States copyright laws, and the copyright in and to such material shall belong to Customer.
b. Customer hereby grants Vigil Digital LLC a worldwide, perpetual, irrevocable, royalty-free license to use and have others use for any purpose any development or modification by Vigil Digital LLC under this Agreement, including any skills developed or any improvements made regardless of their origin, including as suggestions or feedback from Customer.
8. Limitation of Liabilities and Remedy
Customer agrees that the aggregate liability of Vigil Digital LLC and its members, officers, employees and agents to Customer for any action, damage, claim, liability, cost, expense or loss in any way arising out of or related to this Agreement shall be limited to the fees paid or required to be paid by the Customer pursuant to Section 2 of this Agreement in the one year period immediately preceding the date the claim arose. In no event shall Vigil Digital LLC or its members, officers, employees or agents be liable to Customer or to Customer’s stockholders, members, partners, directors, officers, employees or agents for any loss or corruption of data or any consequential, exemplary, special, indirect, incidental or punitive damages, including, without limitation, arising from lost profits, lost business, unavailability or performance of the Services, or opportunity costs.
9. Indemnification
Each party agrees to indemnify and hold harmless the other party and its stockholders, members, partners, directors, officers, employees and agents (collectively, the “Indemnified Parties”) from and against, and will promptly pay upon demand to the Indemnified Party, the amount of, any and all losses, liabilities, claims, costs (including, without limitation, costs of investigation and defense), damages, and expenses (including, without limitation, reasonable attorneys fees) which an Indemnified Party may sustain resulting from, arising out of, relating to or caused by (a) any breach, or any action, claim, or demand alleging a breach, by party providing indemnification hereunder (the “Indemnifying Party”) of any covenant or other agreement contained in this Agreement and (b) any breach, or any action, claim, or demand alleging a breach, of any representation or warranty made by the Indemnifying Party in this Agreement. The remedies provided in this section are not exclusive of and do not limit any other remedies that may be available to any Indemnified Party. The obligations set forth in this Section 9 shall survive the Term of this Agreement.
10. Miscellaneous
a. Notices. All notices, requests, consents, demands or other communications given under this Agreement shall be in writing and shall be deemed duly given and received (a) upon personal delivery to the party to whom it is directed; (b) three days after being sent by certified or registered mail return receipt requested, to the party to whom it is directed, postage and charges pre-paid; (c) one business day after being sent by express overnight delivery by a national carrier to the party to whom it is directed; or (d) upon actual delivery followed by the sending of an acknowledgment of receipt if sent by electronic mail or any other electronic means (electronic mail or any other electronic means shall constitute a writing for purposes of this Agreement). All notices, requests, consents, demands and other communications shall be addressed to the addresses set forth below (which addresses may be changed from time to time by either party by providing prior written notice to the other in the manner set forth above):
If to Customer, to the name and contact information set forth on the Services Agreement or otherwise provided to Vigil Digital LLC by Customer. If to Vigil Digital LLC:
cristian@vigildigitial.com
b. Confidential Information. “Confidential Information” means the trade secrets and other confidential information of Customer which is not generally known to the public, or which is generated or collected by or utilized in the operations of the Customer and other information that, due to the nature of the information or circumstances of disclosure, a party would understand it to be confidential information. Vigil Digital LLC shall take commercially reasonable efforts to protect Customer’s Confidential Information and shall not, except as reasonably necessary to provide the services or as required by statute, regulation, or any legal process, disclose any of Customer’s Confidential Information related to this Agreement, without the express prior written consent of an authorized representative of Customer.
c. Severability. If any provision of this Agreement is held invalid, such provision shall be restated to reflect, as nearly as possible, the original intention in accordance with applicable law and the remainder of the Agreement shall remain in full force.
d. Waiver. The failure of a party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with that provision or any other provision of this Agreement.
e. Applicable Law and Forum. All questions concerning the construction, validity, and interpretation of this Agreement and the performance of the obligations imposed by this Agreement shall be governed by the laws of the Commonwealth of Kentucky, without regard to its conflicts of law provisions. Any suit, action or proceeding against either party to this Agreement brought by the other party with regard to this Agreement, or the rights and obligations of the parties under this Agreement, shall be brought in the courts located in Fayette County, Kentucky. The parties hereby irrevocably consent to the jurisdiction of the aforementioned courts. In addition, and notwithstanding the foregoing, each of Customer and Vigil Digital LLC irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
f. Parties in Interest. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties to this Agreement and their respective successors, heirs, legatees, personal representatives and permitted assigns. No assignment, delegation or other conveyance of this Agreement or of any rights or obligations hereunder (by operation of law or otherwise) may be made by Customer without the prior written consent of Vigil Digital LLC. Vigil Digital LLC shall have the right to subcontract the performance of any of the Services hereunder to third parties.
g. Headings. The headings and other captions in this Agreement are for convenience and reference only and shall not be used in interpreting, construing or enforcing any of the provisions of this Agreement. Common nouns and pronouns will be deemed to refer to the masculine, feminine, neuter, singular, and plural, as the context may require.
h. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes any prior written or oral discussions, agreements and/or undertakings of any kind and nature between the parties with respect to the subject matter of this Agreement. Except as provided or contemplated by this Agreement, this Agreement shall not be amended except by a writing signed by both parties. The recitals to this Agreement are deemed a part of and are incorporated by reference into this Agreement.
i. General Provisions. The parties to this Agreement are independent contractors and an agency, joint venture, partnership, fiduciary relationship, or any other relationship other than in the nature of independent contractor, shall not arise from this Agreement, and neither party has the right or authority to act for, or on behalf of, the other party. The provisions of this Agreement are not for the benefit of any third party. Provisions of this Agreement that are intended to survive this Agreement shall survive. Each individual signing below swears and affirms that he or she has authority to sign on behalf of the Party to this Agreement for which he or she signs, that this Agreement may be executed in counter-parts, each of which shall be deemed an original but all of which together will constitute one and the same instrument, and signed copies of this Agreement may be delivered by '.pdf”, 'jpeg.” or fax and constitute receipt as an original.
j. WAIVER OF JURY TRIAL. THE PARTIES HEREBY ACKNOWLEDGE THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
k. Order of Precedence. In the event of a conflict between these Terms and Conditions, the Services Agreement, and any Service Description, the following is the order of precedence: (1) Services Agreement; (2) Terms and Conditions; and (3) Service Descriptions.
SCHEDULE A
SEO DISCLAIMERS
a. Vigil Digital LLC has no control over the policies of search engines with respect to the type of sites and/or content that they accept now or in the future. Customer’s website may be excluded from any directory, platform, or search engine at any time at the sole discretion of the search engine or directory.
b. Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms, and other competitive factors, Vigil Digital LLC does not guarantee #1 positions or consistent first page rankings for any particular keyword, phrase or search term.
c. If you are in the legal, medical, real estate or any other industry where you require prior approval of your blog content, we are happy to accommodate. Please be aware that if there are delays for approval on your part, your results may be hindered and Vigil Digital LLC will not be responsible for any such delay. In the event that Customer has the right to approve any blog posts or other content (“Website Content”) submitted by Vigil Digital LLC prior to posting on Customer’s website, Customer acknowledges and agrees that Vigil Digital LLC’s delivery of the Website Content to Customer for approval shall constitute the full satisfaction of its obligation to create and submit such Website Content, regardless of whether Customer provides its approval and the Website Content is posted on Customer’s website. Vigil Digital LLC shall not be liable for any Website Content approved by Customer.
d. Vigil Digital LLC policy is to never export or give admin access to anyone from our ads account. We have worked for years to develop our keyword list, test ad copy, and develop a strategy specific for client success. We are happy to share anything else you need (copies of reports, analytics access, etc). Our ad campaigns including keyword lists, negative keyword lists, and management strategies are proprietary. Because of this, we do not grant access to any ad campaigns.
e. Vigil Digital LLC is not responsible for changes made to the Customer’s website by other parties, including those that adversely affect the search engine rankings of Customer’s website.
f. Vigil Digital LLC is not responsible for Customer overwriting search engine optimization work to Customer’s site (e.g., Customer/webmaster uploading work over work already provided/optimized). Customer will be charged an additional fee for reconstructing content.
g. Any costs billed to the client by their current hosting provider, support channel, or third-party is the responsibility of the client, unless explicitly informed otherwise in writing.
SOCIAL MEDIA DISCLAIMERS
a. Vigil Digital LLC has no control over the policies of social media platforms with respect to the type of sites and/or content that they accept now or in the future. Customer’s content may be excluded or deleted from any social media platform at any time at the sole discretion of the social media platform.
b. Vigil Digital LLC has no control over the changes made by social media platforms to Customer’s social media profiles. Customer’s social media profiles may be excluded, disconnected or deleted at any time at the sole discretion of the social media platform.
c. Vigil Digital LLC is not responsible for changes made to the Customer’s content by other parties.
d. Vigil Digital LLC is not responsible for Customer changing or deleting social media content that is a part of ad spend. Customer will be charged an additional fee for reconstructing content or ad spend.
e. Vigil Digital LLC has no control over the changes made to Customer’s social media platform information by said social media platform.
f. Vigil Digital LLC is not responsible for photo or video content creation. We will use content provided by our clients and their vendors, and/or stock photography.
g. Vigil Digital LLC has no control over the verification and privacy settings of an account that has been locked by social media platforms. Vigil Digital LLC will use commercially reasonable efforts to work with Customer to regain access but it is understood that Vigil Digital LLC will not be able to fulfill their agreement for said posts if there is delay in contact from Customer.
h. Vigil Digital LLC is not responsible for changes made to the Customer’s website by other parties, including those that adversely affect the search engine rankings of Customer’s website.
i. Vigil Digital LLC is not responsible for Customer overwriting search engine optimization work to Customer’s site (e.g., Customer/webmaster uploading work over work already provided/optimized). Customer will be charged an additional fee for reconstructing content.
j. Any costs billed to the client by their current hosting provider, support channel, or third-party is the responsibility of the client, unless explicitly informed otherwise in writing.
WEB DESIGN DISCLAIMERS
a. Vigil Digital LLC has no control over the policies of search engines with respect to the type of sites and/or content that they accept now or in the future. Customer’s website may be excluded from any directory or search engine at any time at the sole discretion of the search engine or directory.
b. Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms, and other competitive factors, Vigil Digital LLC does not guarantee #1 positions or consistent first page rankings for any particular keyword, phrase or search term.
c. The following services are not included:
i. Graphic Design: We have partner companies with talented in-house graphic designers, but all logo design, identity work and print collateral are quoted at separate prices, and are not included in web proposals.
ii. Content Creation: Our web developers rely on our clients to generate the content needed to build a website. Unless mutually agreed by Vigil Digital LLC and Customer, our developers do not supply content/copy.
iii. Maintenance: Maintenance and future updates are not included and will be billed at a rate of $150/hour.
iv. Email: Email maintenance and configuration is the sole responsibility of Customer.
v. E-commerce: Vigil Digital LLC is not responsible for updating inventory, processing orders, troubleshooting payments, or any other matters related to Customer’s e-commerce operations, if any.
vi. Third-party Integrations: Vigil Digital LLC cannot guaranty function or upkeep of any third-party applications that have been integrated into the Customer’s website, including, without limitation, schedulers, calculators, and third party point of sale platforms.
d. Vigil Digital LLC is not responsible for changes made to the Customer’s website by other parties that adversely affect the Customer’s website.
e. Vigil Digital LLC strives to make websites easily accessible to everyone; however, we do not guarantee compliance with WCAG 2.0 or other accessibility standards. Should you require WCAG 2.0 compliance now or in the future, your website may require significant changes or a complete redesign.
f. Customer is solely responsible for compliance with any and all laws and regulations that apply to Customer, Customer's activities (including through the Services), or Customer's industry, including all laws and regulations regarding the collection, disclosure, maintenance, protection, storage, transmission, use and disposition of any data from customers or other visitors to Customer’s website, and for providing all appropriate disclosures and obtaining all appropriate consents and authorizations. Vigil Digital LLC will not be responsible for providing, implementing, or configuring the Services in a manner that complies with any such laws or regulations. In no event will Vigil Digital LLC, its business partners, licensors, services providers, agents, or suppliers be liable for any claim or action arising from or related to Customer's failure to comply with any applicable laws or regulations. Without limiting the generality of the foregoing, Customer agrees that it is solely responsible for its own compliance with privacy and marketing laws and regulations, including the Telephone Consumer Protection Act.
HOSTING SERVICES DISCLAIMERS
a. Vigil Digital LLC' hosting services may be provided through a third party hosting provider, such as Amazon Web Services ("Hosting Provider"). Vigil Digital LLC is not responsible and will in no event be liable for, and you hereby expressly hold Vigil Digital LLC harmless from, all acts or omissions of the Hosting Provider.
b. Vigil Digital LLC may from time to time make material enhancements or changes to the hosting services, including changing the Hosting Provider. In the event of such enhancements or changes, the hosting services will include at least the functionality or quality of hosting services that Customer previously received and shall continue to comply with all of the requirements of the Agreement.
c. Hosting services are provided subject to the Hosting Provider's service descriptions and policies, including any acceptable use policy. Customer shall fully comply with the Hosting Provider's acceptable use policy and all other Hosting Provider policies and procedures applicable to the services.
d. Customer is solely responsible for backing up all data and information provided in connection with the hosting services. Vigil Digital LLC shall not be responsible for backing up or otherwise storing any data or information of any kind relating to the hosting services. Hosted files are non-transferrable.
e. Customer acknowledges that the Hosting Provider controls the servers on which the hosting services are provided. Vigil Digital LLC is not responsible for, and Customer shall hold Vigil Digital LLC harmless from all damages arising from, the security of the website or any data or information contained therein. Customer agrees that (i) Customer and Vigil Digital LLC rely entirely upon the security measures taken by the Hosting Provider; and (ii) Customer has reviewed the Hosting Provider's security measures and confirmed they are acceptable for Customer's purposes and use of the hosting services.
f. The applicable monthly hosting fee will apply throughout the life of the website. (This pays for Customer's space on the web, as well as covers the cost of an SSL certificate for added security and SEO friendliness.) Notwithstanding any pricing on the Services Agreement to the contrary, Vigil Digital LLC shall pass through to Customer, and Customer shall pay in a manner consistent with the Agreement, all fees, costs, and charges imposed by the Hosting Provider in connection with the hosting services. Customer specifically acknowledges and agrees that the Hosting Provider prices or costs may change from time-to-time, and Customer hereby expressly agrees to all such pricing changes.
g. In the event that Customer fails to pay the hosting services fee, violates any Hosting Provider policy or rule, or engages in or permits any act or omission that Vigil Digital LLC determines could materially impact its relationship with the Hosting Provider or its ability to provide hosting services to other Vigil Digital LLC customers, Vigil Digital LLC reserves the right, in its sole and absolute discretion, to terminate the hosting services.
