The Client and Consultant may disclose confidential information one to the other to facilitate work under this TOS. Such information shall be so identified in writing at the time of its transmittal, and shall be safeguarded and not disclosed to third parties by the receiving party. Confidential information shall not include information that:
3.1. Third Party or Client Script Modification
Consultant can take no responsibility for services provided by third parties through us or otherwise, including the web hosting of the Client's Software. Client may desire to independently edit or update his Software, note however, Consultant is not responsible for any damage created by the Client, agent of the Client or any third party.
3.2. Consequential Loss
Under no circumstances will Consultant be responsible or liable for financial or other loss or damage caused by the failure or use or misuse of its Software. The Client should ensure that data on their site is regularly backed up and that a contingency plan is in place to minimize possible losses as a result of Software failure.
Consultant will make reasonable attempts to protect the integrity of the Client's Software. As no software or server is 100% safe from security breach, the Client understands that the Consultant cannot be held accountable for all security breaches should they occur.
3.4. Status and Duration of Offers
Proposals and offers are valid for a period of two weeks from the date issued. Consultant is not bound to honor offers that have expired. Offers are not legally binding until an acceptable timetable for the work has been agreed by both parties. This timetable must be agreed within the two weeks that the offer is valid. If an acceptable timetable has not been approved by both parties within two weeks of the offer being made, the offer is deemed to have expired. Consultant reserves the right to adjust timetable and all project dates accordingly or treat offer as invalid and therefore terminated if Client fails to pay first deposit before the start date specified in offer.
4. INTELLECTUAL PROPERTY
4.1. Offers and Proposals
Offers and proposals made by Consultant to potential clients should be treated as trade secrets and remain the property of Consultant. Such offers and proposals or the information contained within them must not be passed to third parties or publicly disseminated without prior written authorization from Consultant. This includes, but is not limited to, technical features, functionality, aspects of the design and pricing information.
Once Consultant has received full payment of all outstanding invoices and the Software has been provided to a Client, the Client will be granted a License to use the Software and its contents. The Consultant will provide Client with Single Magento Installation License in accordance with Clause 4.3.
The client may request to change the domains or sub-domains in his License after the order was placed. All requests to update the license must be approved by the Consultant. However, Consultant is not obligated to approve these requests and may reject them for any reason.
4.3. Single Magento Installation License (the "License")
The same applies to derivative works based on the Software.
The same applies to works based on reverse-engineered versions of Consultant's Software.
Derivative works based on the Software includes descriptions of the algorithms and methods implemented.
Any violation of copyright laws may result in severe civil and criminal penalties.
Without prejudice to any other rights, Consultant may terminate this License at any time if you fail to comply with the TOS. In such event, it constitutes a breach of the agreement, and your License to use the Software is revoked and you must destroy all copies of Consultant's Software in your possession. After being notified of termination of your License, if you continue to use Consultant's Software, you hereby agree to accept an injunction to prevent you from its further use and to pay all costs (including but not limited to reasonable attorney fees) to enforce Consultant's revocation of your License and any damages suffered by Consultant because of your misuse of the Software. Consultant is not bound to return you the amount spent for purchase of the Software for the termination of this License.
4.4. Trade Secrets
Any code that is not freely accessible to third parties and not in the public domain, and to which Consultant or their suppliers owns the copyright, may not be copied, published, distributed or passed to any third parties in any form without prior written consent from Consultant. Consultant acknowledges the intellectual property rights of the Client. Information passed in written form to Consultant, and that the Client has indicated is confidential or a trade secret, will not be published or made available in any other way to third parties without the prior written consent of the Client.
5. CUSTOMER RATINGS AND REVIEWS
When Client submits content for posting on Consultant's Site, Client permits Consultant to post his submission with his name, city, country and website address. By submitting any content to Consultant, Client represents and warrants that:
Client further agrees and warrants that Client shall not submit any content:
Client agrees to indemnify and hold Consultant (and its officers, directors, agents, subsidiaries, joint ventures, employees and third-party service providers), harmless from all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown including reasonable attorneys' fees, arising out of a breach of Client's representations and warranties set forth above, or Client's violation of any law or the rights of a third party.
For any content that Client submit, Client grants Consultant, including its affiliates and subsidiaries, a, perpetual, irrevocable, royalty-free, transferable right and license to use, copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from and/or sell and/or distribute such content and/or incorporate such content into any form, medium, product or technology throughout the world without compensation to the Client.
All content that Client submits may be used at Consultant's sole discretion. Consultant reserves the right to change, condense or delete any content on Consultant's website that Consultant deems, in its sole discretion, to violate the content guidelines or any other provision of these TOS. Consultant does not guarantee that Client will have any recourse to edit or delete any content that Client has submitted. Ratings and written comments are generally posted within two to four business days. However, Consultant reserves the right to remove or to refuse to post any submission for any reason. Client acknowledges that Client, not Consultant, is responsible for the contents of Client's submission. None of the content that Client submit shall be subject to any obligation of confidence on the part of Consultant, its agents, subsidiaries, affiliates, partners or third party service providers and their respective directors, officers and employees.
6. RESERVATION OF RIGHTS
All rights not expressly granted hereunder are reserved to Consultant, including but not limited to all rights in sketches, comps, or other preliminary materials.
7. PERMISSIONS AND RELEASES
The Client agrees to indemnify and hold harmless Consultant against any and all claims, costs, and expenses, including attorney's fees, due to materials included in the Software at the request of the Client for which no copyright permission or previous release was requested or uses which exceed the uses allowed pursuant to a permission or release.
Either party may terminate this TOS by giving 14 days written notice to the other of such termination. In the event that work is postponed or terminated at the request of the Client, Consultant shall have the right to bill pro rata for work completed through the date of that request, while reserving all rights under this TOS. If additional payment is due, this shall be payable within seven days of the Client's written notification to stop work. In the event of termination, the Client shall also pay any expenses incurred by Consultant and the Consultant shall own all rights to the Software. The Client shall assume responsibility for all collection of legal fees necessitated by default in payment.
This TOS shall be governed and construed in accordance with the laws of the State of New York, USA, which shall claim venue and jurisdiction for any legal action or claim arising from the contract between Consultant and the Client. The said TOS is void where prohibited by law.
9.2. Survival of Contract
Where one or more terms of this TOS are held to be void or unenforceable for whatever reason, any other terms of the TOS not so held will remain valid and enforceable at law.
The Client and Consultant are independent parties and nothing in this TOS shall constitute either party as the employer, principal or partner of or joint venture with the other party. Neither the Client nor Consultant has any authority to assume or create any obligation or liability, either express or implied, on behalf of the other.
9.4. Entire Agreement
This TOS replaces all previous agreements and the discussions relating to the subject matters hereof and constitutes the entire agreement between the Client and the Consultant with respect to the subject matters of this Agreement. This Agreement may not be modified in any respect by any verbal statement, representation, or agreement made by any employee, officer, or representative of the Client, or by any written documents unless it is signed by an officer of the Client and by the Consultant.
This document was last updated on October 16th, 2017