These terms constitute (the “Agreement”) is made between Data Driven Design, LLC (DDD), a Tennessee Limited Liability Company, whose address for notice purposes is 2666 Thompsons Station Rd. E, Tennessee, TN 37179 and (“Customer”) checking the terms box on a payment authorization, (together the “Parties.”).
Overview: This agreement shall govern any and all products and services provided to Customer by DDD.
Term: The initial term of this Agreement shall commence on the date the customer initially provided first payment via credit card, and continue for 18 months. Upon expiration of the initial term, this Agreement shall automatically renew for consecutive 12-month periods until terminated in accordance with this Agreement.
Fees: Contract Services shall be provided and paid for in accordance with the terms and conditions of both this Agreement. By accepting these terms, Customer agrees to DDD automatically charging the credit card on file at its sole discretion for work performed. By accepting these terms, Customer agrees there will not be any chargebacks allowed during any period for any reason.
Data Driven Design, LLC shall be excused from any delay or failure in performance required hereunder if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of God, acts of war, fire, insurrection, strikes, lock-outs or other serious labor disputes, riots, earthquakes, floods, explosions or other acts of nature.
Subcontracting: DDD reserves the right to subcontract to third parties any or all Services that it is required to provide to Customer.
Limitation of Liability: Although Customer’s utmost satisfaction is DDD’s goal, except where expressly stated otherwise in writing, DDD makes no warranties or guarantees regarding the Services. In the event DDD is found liable to Customer for any damages in connection with Agreement, Customer agrees that DDD’s liability shall be limited as follows:
Delay; Interruption; Non-Delivery: DDD shall not be liable to Customer for damages resulting from any delays, mis-deliveries, or non-deliveries of Services, or from any interruptions of Services.
The Client acknowledges and agrees that Data Driven Design, LLC will not be liable for any losses or damages, whether indirect, incidental, special or consequential, in profits, goods or services, irrespective of whether or not the Client has been advised or otherwise might have anticipated the possibility of such loss or damage.
The client acknowledges and agrees that Data Driven Design, LLC cannot guarantee the results or effectiveness of any of the services rendered or to be rendered. Rather, services shall be executed in a professional manner and in accordance with good industry practice. Best efforts will be used but no results are promised.
Selection and Use of Services: Customer shall be solely responsible for the selection, use and suitability of the Services, and DDD shall have no liability for any damages arising therefrom.
Damages Caused by Third Parties: DDD shall not be liable to Customer for any damages caused by third parties.
Forces of Nature: DDD shall have no liability for delay or failure in performance of Services due to Force Majeure, which shall mean acts of God, lightning, other weather damage (including but not limited to wind, rain, earthquake, flooding or hail), power anomalies, labor disputes, changes in law, regulation or government policy, riots, war, fire, epidemics, acts or omissions or vendors or suppliers, transportation difficulties, acts of terrorism or other occurrences which are beyond DDD’s control.
Damages Caused by Discontinuation of Services: DDD shall not be liable to Customer for any damages resulting from DDD’s discontinuation of Services.
No Consequential Damages: In no event shall DDD be liable to Customer for any type of incidental, indirect, special, reliance, or consequential damages of any kind whatsoever, including but not limited to, any claim for loss or profits, loss of business opportunity or loss of revenue (even if advised the possibility of such loss) arising from or related to this Agreement, whether based on breach of contract, breach of warranty, negligence, indemnity, or any other theory of liability.
Maximum Aggregate Liability: Notwithstanding anything else to the contrary contained in the Agreement or any applicable Confirmed Proposal, DDD’s maximum aggregate liability to Customer for any claim related to, or in connection with this Agreement or any Confirmed Proposal shall be limited to the lesser of (i) the amount of fees actually paid to DDD by Customer for the Service involved in the claim (i.e., a refund), or (ii) the total amount of fees actually paid by Customer to DDD under this Agreement during the 1 months immediately preceding the event giving rise to the claim.
Third Party Virtual Services, Products, Equipment and Other Goods; Disclaimer of Warranty: To the extent DDD installs, orders, delivers, utilizes, sells, refurbishes, services, leases, inspects, recommends, or promotes any product, equipment or other good (“Products”) in connection with any Services (virtual or physical), DDD expressly disclaims any warranty and liability as to the merchantability, utility or reliability of such Products. The preceding sentence shall apply notwithstanding any guarantee of satisfaction found in any Confirmed Proposal.
Compliance with Law: Customer agrees that it will use the Services only for lawful purposes and in accordance with this Agreement and any applicable Confirmed Proposals.
Non-Solicitation: Customer agrees that, during the term of this Agreement and for the period through and including 12 months after the last date that DDD provides any Services to Customer, Customer will not directly or indirectly solicit for hire, contract with, or recommend another to engage or receive any goods or services from any person who was an employee, representative or agent of DDD at any time during the term of this Agreement, except with DDD’s prior written consent. Since it is difficult to estimate what DDD’s damages would be in the event of any breach of this Paragraph, the Parties agree that, in the event Customer breaches the provisions of this Paragraph, DDD shall be entitled to liquidated damages in an amount equal to the gross annual salary of the employee, representative or agent in question, or, in the alternative, to injunctive relief. For hourly employees, representatives or agents, the “annual salary” is the amount earned per hour multiplied by forty hours by fifty-two weeks.
Confidentiality: The Parties acknowledge that during the term of this Agreement each may be exposed to and receive information relating to the confidential affairs of the other or its affiliates, including, but not limited to, business and marketing plans, client and employee lists, pricing and cost information, competitive data, financing, expansion jobs, business policies and practices, and other confidential information (collectively, “Confidential Information”). To the extent either Party (the “Receiving Party”) receives Confidential Information of the other Party (the “Disclosing Party”), the Receiving Party shall not, during the term of this Agreement or beyond, (i) use the Confidential Information for the benefit of any person or entity other than the Disclosing Party, (ii) disclose the Confidential Information to any person or entity without the prior written consent of the Disclosing Party, or (iii) take or fail to take any action which will cause the Confidential Information to lose its confidential nature. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted and practicable under the circumstances). If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Paragraph, the Disclosing Party shall have the right, in addition to any other remedies available under this Agreement or at law, to seek injunctive relief to enjoin such acts.
Indemnification: Customer shall defend, indemnify and hold harmless DDD, its officers, agents, and employees from and against any and all losses, costs, expenses (including, but not limited to, reasonable attorneys’ fees), claims, damages, liabilities, penalties, actions, proceedings or judgements (collectively, “Losses”) resulting from any claim, suit, action, or proceeding brought by any third party (including any officer, agent or employee of Customer) against DDD, its officers, agents, employees, related to or arising out of the performance or this Agreement and attributable to either (i) the negligent, reckless or intentional acts or omissions of the Customer, its officers, agents or employees, or (ii) the breach of this Agreement by Customer.
Discontinuation of Services by DDD: In the event Customer materially breaches any of its obligations under this Agreement, including, but not limited to, its obligation to pay fees, DDD shall have the right to discontinue, either temporarily or permanently, any or all Services being provided to Customer upon ten (10) days notice; provided, that in the event DDD reasonably believes that it will suffer material damages during such ten (10) day notice period, DDD may terminate this Agreement immediately. Upon receipt of the notice, the Parties shall immediately begin making arrangements for the transfer and delivery of Customer data to Customer. The right to discontinue Services under this Paragraph may be exercised in DDD’s sole discretion, and in addition to and in conjunction with any other remedies available under Agreement or at law. Customer hereby acknowledges and agrees that, in the event DDD discontinues Services pursuant to this Paragraph, all of the limitations of liability found in this Agreement shall apply.
Enforcement: In the event that any suit or action is instituted under or in relation to this Agreement, including without limitation to enforce any provision in this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses or appeals.
Assignment: Customer may not assign this Agreement without the prior written consent of DDD, which consent shall not be unreasonably withheld. Any attempted assignment of this Agreement by Customer without the prior written consent of DDD shall be null and void. This Agreement may be assigned by DDD in the event of a sale of substantially all of the assets of DDD to a third party that shall continue the operations of DDD in substantially the same manner as after such assignment.
*Note – Data Driven Design will place ‘Website Design and Development by Data Driven Design’ in the footer of your website. This may not be removed without communicating with Data Driven Design about your reason for removing it.
Data Driven Design will also be permitted to use this project in promotion of Data Driven Design including but not limited to content on https://datadriven.design
Waiver: Severability: No waiver of any breach of any provision of this Agreement shall constitute a waiver of any concurrent or future breach of the same or any other provision of the Agreement, and no waiver shall be effective unless made in writing. If any term or provision of this Agreement is found unenforceable for any reason, the same shall not invalidate the remaining terms and provisions of this Agreement.
Termination of this Agreement by Either Party: This Agreement may be terminated by either Party at any time for any or no reason by delivering 30 days prior written notice (a “Notice of Intent to Terminate”) to the other Party.
Effective Termination Date: The 30th day following the delivery of the Notice of Intent to Terminate will be the “Effective Termination Date” of this Agreement.
Integration; Amendment; Counterparts: This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the Parties on the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings, promises, arrangements and agreements, whether written or oral, regarding such subject matter. This Agreement may not be amended or modified unless such amendment or modification is made in writing and signed by the Parties. This Agreement, to the extend signed and delivered by means of a facsimile machine or other form of electronic transmission shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed Agreement. This Agreement may be executed in any number of counterparts with the same effect as if the Parties had signed the same document; however, this Agreement shall not become operative until the Parties have signed a counterpart hereof. All counterparts shall be construed together and shall constitute one Agreement.
Applicable Law: This Agreement shall be governed and construed in accordance with the laws of the State of Tennessee, and venue for any action, claim, dispute or issue shall be exclusively in the courts sitting in Williamson County, Tennessee, unless otherwise agreed in writing by the Parties.