Terms and Conditions
1. SCOPE OF SERVICES
1.1 Services. ProMedia Group has expertise and experience with providing website development, web application development, computer programming, software development, systems analysis, consulting, technical support and other specialized technical services (“Services”). ProMedia Group shall provide Services to each customer (“Customer”) that (i) accepts ProMedia Group’s quote or proposal in writing or via e-mail, (ii) executes a separate agreement with ProMedia Group, or (iii) makes any payment to ProMedia Group on account of Services (any such Customer, having done any of the foregoing, being deemed to have signed an agreement (“Agreement”), which shall be deemed, in all cases, to include the terms and conditions set forth herein). Each Agreement shall stipulate the exact details of Services to be provided, all of which shall be governed by and subject to the terms and conditions set forth below. These terms and conditions shall be deemed to be incorporated by reference into each Agreement.
1.2 Additional ProMedia Group Services. Upon request by Customer, ProMedia Group agrees to negotiate in good faith with Customer with respect to providing additional maintenance, support, hosting or other services with respect to the Services for Customer that will be outside of the scope of the Agreement. These additional services may, in certain instances, be subject to additional terms and conditions.
1.3 Out-of-area Services. If Services are to be provided at Customer’s facilities that are outside of the Louisville Metro area, the Customer shall, in advance of Services performed, pay reasonable expenses for accommodations, travel, and such other reasonable costs as are incurred by ProMedia Group in connection with the provision of such Services. ProMedia Group shall use its best efforts to estimate the amount of such reasonable expenses in advance of providing such Services, and Customer shall pay to ProMedia Group within thirty (30) days of receipt of the amount of such estimate. Within thirty (30) days after such Services have been provided, Customer shall pay to ProMedia Group such additional reasonable amount as shall be due for such expenses or ProMedia Group shall reimburse Customer for any overpayment.
- WARRANTIES; LIMITED LIABILITY
2.1 Warranties; Disclaimer of Warranties. ProMedia Group warrants to Customer that all Services will be performed in a professional manner consistent with industry practices. In addition, each party represents and warrants to the other party that it has the right and authority to enter into this Agreement and to perform its obligations hereunder, that the granting of the rights and undertaking of the obligations hereunder will not infringe upon or conflict with any rights of a third party, and that its performance hereunder will not violate any applicable U.S. laws and government rules and regulations. Except as set forth above in this Section 3, ProMedia Group does not make any warranties of any kind, either expressed or implied, including, without limitation, (a) warranties of merchantability or fitness for a particular purpose, (b) non-infringement for the Services, (c) that the Services will meet Customer’s requirements, or (d) as to the results that Customer may achieve upon completion of the Services. If this exclusion is held unenforceable, than to the extent of such unenforceability, all express and implied warranties shall be limited in duration to a period of 30 days after the date hereof, after which time no such warranties shall remain in effect.
2.2 Consequential Damages. EXCEPT WITH RESPECT TO INSTANCES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL OR SPECIAL DAMAGES ARISING FROM ANY CLAIM OR ACTION HEREUNDER, BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES FOR ANY CAUSE WHATSOEVER IN AN AMOUNT IN EXCESS OF THE AMOUNT PAYABLE TO ProMedia Group.
- CONFIDENTIAL INFORMATION
3.1 Confidential Information. Either party may receive or have access to technical information, as well as information about product plans and strategies, promotions, customers and related non-technical business information which the disclosing party considers to be confidential (“Confidential Information”). In the event such information is disclosed, the parties shall first agree to disclose and receive such information in confidence. If then disclosed, the information shall (i) be marked as confidential at the time of disclosure, or (ii) if disclosed orally but stated to be confidential, be designated as confidential in writing by the disclosing party summarizing the Confidential Information disclosed and sent to the receiving party within a reasonable period of time after such oral disclosure. Notwithstanding any provision to the contrary, all source code provided to ProMedia Group is deemed confidential.
3.2 Nondisclosure. Confidential Information may be used by the receiving party only with respect to performance of its project obligations under the Agreement, and only by those employees of the receiving party who have a need to know such information for the purposes related to this project. The receiving party shall protect the Confidential Information of the disclosing party by using the same degree of care (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination or publication of such Confidential Information, as the receiving party uses to protect its own confidential information of like nature. The receiving party’s obligation shall be for a period of five (5) years after the date of disclosure.
All trademarks, patents, copyrights and other intellectual property rights owned by either party on the date hereof shall continue to be owned solely by such party, and nothing herein shall be deemed to confer any rights to any such intellectual property on the other party. Customer represents and warrants that none of the content, materials or data provided by Customer to ProMedia Group with respect to the project infringes the intellectual property or other proprietary rights of any third party, and ProMedia Group shall have no liability for any claims arising out of any such Customer content, including those based on infringement. Furthermore, the Customer understands that any elements within Customer’s website or software that hold existing copyrights of any third party (including but not limited to: third party software and scripts, third party photographs, graphics and other multimedia such as video and audio) remain the property and copyright of their respective owners. By incorporating any third party software, services or products into Customer’s website or software, the Customer also agrees to abide by that company’s terms and conditions. (Should Customer’s project require third party services or software, in the majority of cases ProMedia Group directs its customers to pay for these directly to that third party. Examples may include but are not limited to: credit card processing services, customized scripts and stock photographs, etc. In the event that ProMedia Group pays for these software or services ProMedia Group will bill the Customer for the amount paid by ProMedia Group to the third party). With respect to any ProMedia Group software, source code, object code or other intellectual property contained in or otherwise provided as a deliverable under the Agreement (“ProMedia Group Technology”), ProMedia Group hereby grants Customer, so long as Customer has paid all fees due and owing to ProMedia Group hereunder, a perpetual and non-exclusive right and license to use the ProMedia Group Technology solely to the extent required and described in the Agreement and accompanying documents. It is understood that neither Customer, nor any of its subsidiaries or affiliates, may use any ProMedia Group Technology for commercial resale or sublicense in any form or medium. Any hosting space for Customer’s website which is reserved for the Customer will remain the property of ProMedia Group until paid for in full by the Customer. Any domain names registered on behalf of the Customer will remain the property of ProMedia Group until paid for in full.
- WEB CONTENT AND WEB RELATED SERVICE
5.1 Customer Content. Customer accepts full responsibility for the content posted at Customer’s website, and any grievances brought by a third party arising as result of this content, either in the United States or any other countries, will be the sole responsibility of Customer. Additionally, ProMedia Group will take no responsibility whatsoever for the content of third party websites accessible via links posted at Customer’s website. If ProMedia Group deems any content Customer wishes to include on its website as pornographic, meant to cause extreme offense or illegal in any way, ProMedia Group reserves the right to refuse to continue with the project and no refunds shall be due and owing to Customer.
5.2 Display of Work. Unless instructed otherwise in writing before publishing Customer’s website on the Internet, ProMedia Group reserves the right to include a small, subtle text or brand image link to ProMedia Group’ website from Customer’s pages designed and developed by ProMedia Group. The text will read ‘ProMedia Group’ and will be included in the copyright line at the bottom of Customer’s pages. ProMedia Group reserves the right to display or exhibit any final product(s) to other potential Customers except where doing so may violate any confidentiality agreements which may be in force.
5.3 Search Engine Optimization. If search engine promotion, search engine optimization or submission is included in the Services, Customer acknowledges the following: (a) ProMedia Group cannot guarantee any particular search engine ranking or placement; (b) submission to the majority of search engines and directories does not guarantee entry; (c) ProMedia Group cannot be held responsible for any loss (financial or otherwise) to Customer’s business due to an unexpected drop in search engine rankings; (d) the initial text content to which ProMedia Group applies optimization shall be supplied by the Customer; (e) Customer authorizes ProMedia Group to modify the code of Customer’s web pages at ProMedia Group’s discretion including but not limited to keyword density, page names, meta tags and other elements as it relates to increasing search engine rankings; (f) should Customer make changes to any site text that ProMedia Group has optimized, Customer understands that these changes may have an adverse effect on search engine rankings; (g) search engine submissions are carried out one time only per engine unless otherwise stated; (h) if Customer’s site is sparse in textual content, the Customer should provide additional relevant text content (“Additional Content”) in electronic format for the purpose of creating additional web pages or increasing the content on existing ones, at ProMedia Group’s direction and discretion; (i) if Additional Content is not or cannot be provided, ProMedia Group cannot be held responsible for results related to the absence of such materials; (j) Customer agrees that no work shall be done on the website during the search engine marketing campaign without ProMedia Group’s knowledge.
5.4 Website Hosting. If website or web application hosting is included in the Services, Customer hereby acknowledges that the End User License Agreement (published at LicenseAgreement.htm) shall be deemed to be incorporated by reference into the Agreement.
5.5 Customer Provided Website Components. In the event that the completion of Services depends on the availability of a third party component or several third party components (“Components”) that are outside of ProMedia Group’s control (including but not limited to logos, graphic elements, photographs, articles and other content, secure socket layer certificates, merchant account services, gateway services, ActiveX components, Java applets, software libraries, etc.) and Customer or any third party contracted by Customer fails to provide these Components within reasonable period of time ProMedia Group may deliver the Services without these Components or at its own discretion use alternative components. Furthermore, ProMedia Group may charge additional fees to the Customer for including the required Components when they become available. ProMedia Group is not responsible to train or provide support for any services purchased by the client that are of a third party origin that are implemented on the site created for the client by ProMedia Group.
- AGREEMENT TERM
6.1 Term. Unless accepted by both parties, any Agreement which is a quote or proposal is valid for twenty-eight (28) days from the date it was received by Customer. Such Agreement is accepted either upon signing of the Agreement by both parties, or upon ProMedia Group clearing the first Customer payment, or upon ProMedia Group’s receipt of Customer’s email approval of such Agreement. It is the sole discretion of ProMedia Group to determine which method of approval is applicable for a specific project. Upon acceptance, the Agreement becomes a binding contract that will continue in effect until terminated by either party by delivering a ninety (90) day written termination notice to the other party. Any termination of the Agreement does not forfeit Customer’s obligation to pay for Services provided by ProMedia Group prior to the termination.
6.2 Breach. Either party may terminate the Agreement at any time in the event that the other party is in default or breach of any material provision of the Agreement, and such default or breach continues unremedied for a period of thirty (30) days after receipt of written notice thereof.
6.3 Survival. Notwithstanding any termination of the Agreement, the duties and obligations of the parties under the following provisions herein shall survive for the period specified therein, if any: Section 2 (Confidential Information) and Section 3 (Warranties; Limited Liability).
- PAYMENTS AND FEES
7.1. Fees. For most projects ProMedia Group requires no less than an initial deposit before commencing the work. Typically, this is no more than 50% of the total project cost. If the project is completed with no changes to initial brief, then Customer is only liable to pay this initially quoted fee. If, however, during the project Customer requests various changes to the design brief, ProMedia Group will reserve the right to charge additional fees for this extra work. ProMedia Group will inform Customer of any estimated additional costs involved in any Customer requested changes.
7.2 Estimates. In some cases it is not possible to give an exact quote on certain Services. For these cases an estimate will be given as a general guide to the expected fees for that particular Service.
7.3 Payments. All balances are due before the completed project is uploaded live to the Internet. Customer can request to view and test the website on ProMedia Group’s private servers before official launch. If payment is not received within 30 days of the date of the invoice, it will be considered delinquent and accrue interest at the rate of 1.5% per month or 18% APR.A $25.00 fee will be charged for any returned checks or credit card payments.
8.1. Assignment. Neither party may assign or otherwise transfer the Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, such written consent shall not be required in the event of a merger or sale of all or substantially all of the assets of either party. Assignment of the Agreement by either party shall not relieve the other party of its obligations hereunder or thereunder. The Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
8.2 Entire Agreement. The Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merge all prior discussions between them. No modification of or amendment to the Agreement, nor any waiver of any rights under the Agreement, shall be effective unless in writing and signed by the party to be charged.
8.3 Notice. Unless otherwise stated, all notices required under the Agreement shall be in writing and shall be considered given upon personal delivery of the written notice or within forty-eight (48) hours after deposit in the U.S. Mail, certified or registered. If either party changes it mailing address it shall immediately notify the other party about it in writing.
If for ProMedia Group notices shall be addressed to:
4106 Reas Lane
New Albany, IN 47150
If for Customer notices shall be addressed to the address set forth in the Agreement.
8.4 Severability. If any provision of the Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect, and the parties will negotiate in good-faith a substitute, valid and enforceable provision which most nearly effects the parties’ intent in entering into the Agreement.
8.5. Arbitration. Both Parties agree to submit any irresolvable dispute hereunder to arbitration in Chicago, Illinois in accordance with and subject to the Commercial Arbitration Rules of the American Arbitration Association then in effect. The substantially prevailing party in any arbitration or litigation proceeding shall be entitled to recover its attorneys’ fees from the other party.
8.6 Counterparts. The Agreement may be signed in one or more counterparts, each of which when executed shall be deemed to be an original but all of which taken together will constitute one and the same Agreement.
8.7 Governing Law. The Agreement shall be governed by, construed in accordance with, the laws of the state of Kentucky without regard to the principles of conflicts of laws.
8.8 No Waiver. The failure of either party to enforce at any time for any period the provisions of or any rights deriving from this Agreement shall not be construed to be a waiver of such provisions or rights or the right of such party thereafter to enforce such provisions.
8.9 Headings. The descriptive headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.
8.10 Force Majeure. ProMedia Group shall not be liable for any failure to perform its obligations hereunder in the event such failure is due to circumstances beyond its reasonable control.
8.11 No Third-Party Beneficiaries; Non-Solicitation. Nothing in the Agreement, either express or implied, is intended to or shall confer upon any third party any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement. Customer hereby agrees that during the term of this Agreement and for a period of 1 year thereafter, it will not solicit or hire any employees or ProMedia Group.
8.12 Independent Contractor. ProMedia Group is acting as an independent contractor hereunder, and nothing herein shall be deemed to create an employment or partnership relationship.
- ACCEPTANCE AND PAYMENT
The deposit, no less than 50% of total fee, once accepted and signed, is due 30 days after the approval of this project, unless agreed otherwise between customer and a ProMedia Group representative. Payment plans will be discussed if necessary. Any content for the site is to be provided by the customer (including copy, logos, and videos) unless otherwise agreed and is due before the projects completion date (see terms and conditions).
Make checks payable to ProMedia Group.
Payments should be mailed to
4106 Reas Ln. New Albany, IN 47150
or hand delivered to an authorized ProMedia Group representative.
TERMS OF SERVICE
We (ProMedia Group) agree to be bound by this Terms of Service (TOS) when we process your payment information. You (Customer) agree to be bound by this TOS when you submit your information in the order form on our website, promediagroup.com.
- SERVICE PROVIDED
We maintain the website hosting environment (data center) for all of our websites. Our websites may be hosted outside of our environment. However, we do not guarantee quality or have control outside our own hosting environment. Our hosting packages DO NOT include email services; we only host your website as that is what we believe we are the best at providing quality service for.
Server usage is a privilege we offer customers hosting websites with us. It is not a right. You agree the that the service we provide you may be limited or terminated at any time should we deem your traffic dangerous to the internet reputation of our servers or domain names. If you host your own service, you understand we do not provide that service for you.
Forwarding of other domains to your service can be provided.
Your use of our services must be reasonable. You may not collect and store in our database personal information such as social security numbers, credit card numbers or other types of sensitive information unless implicitly with the use of a SSL. We hold the right to permanently remove that information from our servers otherwise if not using a SSL. You may not place excessive burdens on our CPUs, servers or other resources. You agree that we may place restrictions on your use of our service to the extent that your use exceeds the use by similarly situated customers. You understand that bandwidth, connection speeds and other similar indices of capacity are maximum numbers. Consistently reaching these capacity numbers may result our need to place restrictions on your use of the Service. We will be reasonable in our response with the utmost considerations to our clients.
- CONTACT INFORMATION
You are required to provide us with accurate information when setting up your account and during the course of our relationship. On occasion, we may need to communicate with you by email about your service. You agree to maintain a working email address that is monitored daily. We have no responsibility or liability for interruptions in service based on communications that are misdirected, blocked or otherwise not received as a result of your failure to provide us with updated contact information. All of our regular contact with customers is done by email. The primary contact in our records is considered by us to be our customer. Only that entity may request changes to your account. That contact email can be setup by us and will be through Gmail or your service of choice.
You are responsible for the fees and charges displayed on our pricing page or on your invoice debited to your account. All payments are made prior to the period of service being provided. The initial payment begins hosting immediately and is not dependent upon usage. Our obligation to provide service to you is contingent upon your payment of the fees by your due date. It is your responsibility to ensure that we receive payment. We may temporarily deactivate websites for nonpayment 10 days after the due date. Should service be suspended for any reason including nonpayment, fees will continue to accrue. If fees accrue beyond 30 days, we will terminate the account.
- BILL DISPUTES
If ever you have an issue with a bill, we will work with you in all good faith as to immediately resolve it.
If you are not satisfied with our service and choose to cancel within the first 30 days of service, we will be happy to refund your initial payment.
We require 30 days notice prior to canceling an account. You may cancel your account at any time. We may also cancel your account at any time if we, in our discretion, deem it necessary for any reason including nonpayment or inappropriate content. If we cancel your account, you may wish to restart a cancelled account. In this situation, new setup fees may apply, and we cannot guarantee that we can restore your previous content 10 days after any cancellation.
Upon termination or cancellation, your account will be closed. We have no responsibility to forward email or website traffic or other communications for you once your account is closed. You are encouraged to keep service active during a transition period should you seek to forward your email or other communications.
IMPORTANT: We do not become mean-spirited upon your decision to cancel service. It’s OK to give us advanced notice if you intend to cancel. We will not hurt your service with us in any way should you tell us you need to cancel. We do handle cancellations as professional service providers. We also hope to be treated with the same respect.
- LICENSES AND INTELLECTUAL AND CREATIVE PROPERTY
All rights, title and interest in ProMedia Group LLC’s technology shall remain with ProMedia Group LLC. You are not permitted to circumvent any devices designed by us to protect our, or our licensor’s, ownership interests in the technology we provide to you. You are not permitted to use our graphic designs outside of our service without notifying us and getting approval. Our software and designs always remain the property of ProMedia Group LLC. You are permitted to use the raw content you create within our system however you would like and keep that content should you cancel.
- YOUR REPRESENTATIONS
You represent and warrant to ProMedia Group LLC that: (1) you have understanding of our service; (2) that in entering into this TOS, you will not violate any applicable laws and regulations; and (3) that you will pass through the terms of our TOS to your system users. You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, all materials provided to ProMedia Group LLC, or which may be accessed or transmitted using our service.
THE SERVICE IS PROVIDED ON AN AS-IS BASIS. ProMedia Group LLC HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO THE WARRANTIES OF NON- INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF MERCHANTABILITY AND TITLE. ProMedia Group LLC DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. ProMedia Group LLC IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO, OR FROM, YOU OR STORED BY YOU OR AN END USER VIA THE SERVICE PROVIDED BY US. ProMedia Group LLC SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY ProMedia Group LLC. NO WARRANTIES MADE BY THESE THIRD PARTY ENTITIES TO ProMedia Group LLC SHALL BE PASSED THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES.
THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM ProMedia Group LLC, ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.
SOME STATES DO NOT ALLOW ProMedia Group LLC TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO 90 DAYS FROM THE EFFECTIVE DATE FOR AN INDIVIDUAL SERVICE.
- LIMITATION OF LIABILITY
You agree that ProMedia Group LLC has no liability, whatsoever, for unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content, transmitted, received, or stored on our system.
- GENERAL PROVISIONS
Notices will be sent to you at the email address you provide to us. It is your obligation to ensure that we have the most current email address for you in our records. We do not communicate in writing, as we are a mostly paperless company.
Please refer to our website, www.promediagroup.com, for contact information for most issues, including technical support and billing. Notices regarding this TOS and other ProMedia Group LLC policies should be directed to:
ProMedia Group LLC 4106 Reas Ln. New Albany, IN 47150
- LICENSE (WordPress Theme Subscribers)
Our WordPress themes are released under the GNU Public License version 2.0.
All theme files are packaged separately and are not licensed under the GPL 2.0. Instead, these files inherit the ProMedia Group Themes Personal Use License. These files are given to all members on a personal use basis. You may not offer them, modified or unmodified, for redistribution or resale of any kind.
- OWNERSHIP and LIABILITY (WordPress Theme Subscribers)
You may not claim intellectual or exclusive ownership to any of our products, modified or unmodified. All products are property of ProMedia Group, LLC.
- PHOTOS COPYRIGHT INFORMATION (WordPress Theme Subscribers)
When viewing the theme demos you will see several photographic images used. These photos serve as example images only and are not included in the membership. Our themes do not come packaged with any copyrighted photography. The photos used in the demos are purely for demonstration purposes, and are used to give the visitor a functional preview of what the theme will look like once content has been added. You are responsible for adding your own thumbnail images. The photos used in our demos are licensed images. These photos should not be saved, copied or redistributed in any way.
- TERM HISTORY
- PHOTOS COPYRIGHT INFORMATION (WordPress Theme Subscribers)
Last updated: November 2, 2018