21THIRTEEN DESIGN, INC.

Last updated: January 12, 2017

TERMS OF SERVICE

These Terms of Service (“TOS”) constitute a legal agreement between 21Thirteen Design, Inc., including all of its divisions and subsidiaries (collectively, “21Thirteen Design”) and you, the 21Thirteen Design client ordering such services (“Client”) and governs the acquisition and use by Client of services provided by 21Thirteen Design.

1. Acceptance of Terms

By accepting these TOS, electronically or in writing, and/or by ordering, using or engaging 21Thirteen Design’s services, including but not limited to, submission of payment or authorization of payment to 21Thirteen Design, Client agrees to be bound by these TOS. If the individual accepting these TOS, ordering, using or engaging 21Thirteen Design’s services is doing so on behalf of a company or other legal entity, such individual represents that he or she has the authority to bind such entity and its affiliates to these terms and conditions, in which case the term Client shall refer to such entity and its affiliates. If such individual does not have such authority, or if Client does not agree to be bound by these TOS, such individual and Client must not accept these TOS and Client may not use the services of 21Thirteen Design. Electronic acceptance of the TOS shall have the same force and effect as if Client had agreed to the TOS in writing.

These TOS may be updated from time to time without notice. Client may review the most current version of the TOS at http://www.21thirteen.com/terms.asp. By continuing to use 21Thirteen Design’s services following the update of these TOS, Client agrees to be bound by the most current version of the TOS. If Client does not expressly reject the TOS at the point of the initial payment, Client agrees to the TOS as written and 21Thirteen Design is instructed to commence work on Client’s website as if Client had expressly accepted the TOS in writing.

2. Description of Services

21Thirteen Design, Inc. designs and hosts websites, provides logo design and visual branding, Internet-based marketing services, and provides other website-related services, including, but not limited to, support and modification of websites, e-commerce, web-traffic reporting, database development, interface for updating the website, email accounts (on the basis and subject to certain limitations as provided at the discretion of 21Thirteen Design, Inc.) and additional website-related services (“Services”). Client understands that 21Thirteen Design, Inc.’s services may include certain communications from 21Thirteen Design, Inc. such as advertisements, notices, service announcements and newsletters. Client is responsible for obtaining access to 21Thirteen Design, Inc.’s services that may involve third party fees (including but not limited to, internet service provider (ISP), merchant accounts and gateways). Client also is responsible for all equipment and software necessary to access 21Thirteen Design, Inc.’s services.

3. Electronic Delivery Policy

21Thirteen Design, Inc. is a website-related business and communicates with its Clients electronically. When a Client accepts the TOS, Client consents to receive electronically from 21Thirteen Design, Inc. any notices, progress reports, agreements, disclosures, or other communications (Notices). Client agrees that 21Thirteen Design, Inc. may send Notices in either of the following ways: 1) to the email address provided by Client to 21Thirteen Design, Inc. at the time of sale; or 2) to the new email address account Client establishes through 21Thirteen Design, Inc. Client agrees to check the designated email addresses regularly for Notices. All Notices from 21Thirteen Design, Inc. are effective at the time they are sent by 21Thirteen Design, Inc., regardless of whether the Notice is read or received by Client.

4. Privacy Policy

Personal data and certain other information about the Client are subject to 21Thirteen Design, Inc.’s Privacy Policy. For more information see the privacy policy at https://www.21thirteen.com/privacy/. By using 21Thirteen Design, Inc.’s services Client also agrees to the most current version of 21Thirteen Design, Inc.’s Privacy Policy.

Without prejudice to, and in full compliance with, the 21Thirteen Design, Inc.’s Privacy Policy and all applicable privacy and data security laws, the Parties acknowledge that in performing Services under any work order, 21 Thirteen Design Inc. may obtain or have access to, or otherwise store, process or transmit, certain personally identifiable information, including but not limited to that of the Client’s personnel, which information may include without limitation name, address, other contact information, financial account information, non-driver identification card number, mother’s maiden name, date of birth, passwords, personal identification numbers and codes and/or other information or data that is protected by applicable Laws and/or can be used for identity theft (collectively, “Personal Information”). 21 Thirteen Design agrees that at all times during the term of any work order and thereafter, it shall (a) comply with its obligations under all privacy and data security laws in relation to Personal Information, (b) not use or permit its employees to use Personal Information for any purpose other than for purposes of performing Services for the Client (and not, for example and without limitation, to otherwise contact such individuals), (c) afford access by its employees to Personal Information on a need-to-know basis only.

Without limiting 21 Thirteen Design’s other obligations under this section, 21 Thirteen Design shall ensure to: (i) implement and maintain reasonable security procedures and practices appropriate to the nature of the Personal Information and take such other actions as are necessary to maintain conformance with industry standards of security and to protect the security and confidentiality of the Personal Information, protect against any anticipated or actual threats or hazards to the security or integrity of the Personal Information and prevent unauthorized access to or destruction, use, modification and disclosure of Personal Information, and (ii) otherwise keep the Personal Information confidential in accordance with the terms of this Agreement and any privacy and data security laws.

5. Confidential Information

Client acknowledges and agrees that any information or ideas submitted to 21Thirteen Design, Inc. by any means may be used by 21Thirteen Design, Inc. without compensation or liability to Client for any purpose whatsoever, including but not limited to, enhancing its Services, developing websites, databases, e-commerce and developing, manufacturing and marketing other products. This provision does not apply to Client content or to Personal Information that is subject to 21Thirteen Design, Inc.’s Privacy Policy.

Client hereby gives permission and license to 21Thirteen Design, Inc. to use samples or links to Client’s website designed or marketed by 21Thirteen Design, Inc. for marketing and advertising purposes, including but not limited to, use in 21Thirteen Design, Inc.’s online portfolio and social media websites.

6. Call Monitoring and Recording Privacy Statement

As part of 21Thirteen Design, Inc.’s commitment to providing its Clients with the best possible service, 21Thirteen Design, Inc. may monitor and record telephone calls to and from 21Thirteen Design, Inc. 21Thirteen Design, Inc. also may archive recorded voice mail messages. 21Thirteen Design, Inc. records telephone calls for training purposes, to improve customer service, and to ensure an accurate record of Client calls, which may be needed to support transactions that take place over the telephone. 21Thirteen Design, Inc. undertakes such actions in order to enable it to identify how to better serve its Clients.

7. Unacceptable Practices

As 21Thirteen Design, Inc. strives to offer the very best Services, there are certain guidelines and policies that must govern 21Thirteen Design, Inc.’s efforts and relationships with its Clients. Practices that are in violation of these guidelines and policies are forbidden and will result in the immediate termination of 21Thirteen Design, Inc.’s Services with all monies due. Client acknowledges and agrees that 21Thirteen Design, Inc. has sole discretion over decisions regarding compliance with these guidelines and policies. Unacceptable practices include, but are not limited to:

• Adult or pornographic material including, but not limited to, sexually explicit or suggestive material;
• Sexually oriented products or material;
• Nudity, including airbrushing (exceptions granted on a case-by-case basis if for medical or artistic purposes);
• Offensive or otherwise distasteful material;
• Bulk emailing tools;
• Distribution of internet viruses or other harmful or destructive activities
• Gambling, gaming, lotteries, and similar activities;
• Harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, racial, chauvinistic, ethnically offensive or otherwise objectionable content or language;
• Defamatory, hateful or revenge content or language;
• Content or language that is harmful to minors in any way;
• Illegal activities such as Ponzi schemes, fraudulent charging of credit cards, copyright violations, plagiarism, software piracy, and all unauthorized use of materials or content that infringes on third parties’ intellectual properties;
• Intentional or unintentional violations of any applicable local, state, national or international law;
• Reselling email accounts or hosting accounts to third parties;
• Reselling of any 21Thirteen Design, Inc. services including, but not limited to, design services and updates to third parties without a written re-seller agreement;
• Spamming and all other forms of unsolicited messages including, but not limited to, spam, pyramid schemes, chain letters, and junk email;
• Links to other sites that are in violation of 21Thirteen Design, Inc.’s policies and guidelines;
• Other activities, whether lawful or unlawful, that 21Thirteen Design, Inc. deems to be in poor taste or that reflect adversely on 21Thirteen Design, Inc. or 21Thirteen Design, Inc.’s other clients; or
• 21Thirteen Design, Inc. reserves the right to refuse to design or host an account at its sole discretion at anytime.

As a 21Thirteen Design, Inc. Client, you agree to conduct your business in a legal and professional manner. As a 21Thirteen Design, Inc. Client, you acknowledge and agree that all information, data, text, software, music, sound, photographs, video, messages and other material or content (collectively, “Content”) on Client’s website is the sole responsibility of Client. Client is fully responsible for all website Content and agrees to hold 21Thirteen Design, Inc. harmless in the event of third parties’ legal issues brought against Client for Client’s business practices. 21Thirteen Design, Inc. retains the right to terminate any accounts that are in violation of the letter or spirit of this TOS. At its sole discretion and at any time, 21Thirteen Design, Inc. may discontinue providing Services, or any part thereof, with or without notice. If an account is terminated by 21Thirteen Design, Inc. for a TOS violation, Client is not eligible for a full refund and any refund is subject to the Termination/Cancellation of Services Policy.

As a 21Thirteen Design, Inc. Client you may have access to WordPress editing tools for your website. Client may edit, add, or delete content to or from the website at any time using available WordPress tools and subject to any applicable terms and conditions thereof. 21Thirteen Design, Inc. may or may not pre-screen content. 21Thirteen Design, Inc. shall have the right, but not the obligation, to pre-screen and refuse or remove any content at its sole discretion. Client agrees that Client bears all risks associated with the use of all content, whether edited or written by 21Thirteen Design, Inc., including any reliance upon accuracy, usefulness or completeness.

Client acknowledges that 21Thirteen Design, Inc. may access, preserve, and disclose Client’s account information and content if required to do so by law or in a good-faith belief that such access, preservation, or disclosure is reasonably necessary to comply with legal processes, enforce the TOS, provide customer service or protect the rights, property, or safety of 21Thirteen Design, Inc. and the public.

8. Acceptable Use Policy

This Acceptable Use Policy (“AUP”) is incorporated by reference in your hosting services agreement with 21Thirteen Design, Inc. Your services may be suspended or terminated for violation of this Acceptable Use Policy in accordance with the TOS. Inquiries regarding the AUP should be directed to design@21thirteen.com

Abuse

Client may not use 21Thirteen Design, Inc.’s Mail Service or services to engage in, foster, or promote illegal, abusive, or irresponsible behavior, including:

• Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network;
• Monitoring data or traffic on any network or system without the express authorization of the owner of the system or network;
• Interference with service to any user of the 21Thirteen Design, Inc. or other network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
• Use of an Internet account or computer without the owner’s authorization;
• Collecting or using email addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, Internet scamming, password robbery, spidering, and harvesting);
• Collecting or using information without the consent of the owner of the information;
• Use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting;
• Use of the service to distribute software that covertly gathers information about a user or covertly transmits information about the user;
• Use of the service for distribution of advertisement delivery software unless: (i) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (ii) the software is easily removable by use of standard tools for such purpose included on major operating systems; (such as Microsoft’s “ad/remove” tool); or
• Any conduct that is likely to result in retaliation against the 21Thirteen Design, Inc. network or website, or 21Thirteen Design, Inc.’s employees, officers or other agents, including engaging in behavior that results in any server being the target of a denial of service attack (DoS).

Bulk Email

Client may not use a 21Thirteen Design, Inc. Mail Service to send bulk mail. Please see the applicable Product Terms and Conditions for those services.

Mail Requirements

Client shall comply with the CAN-SPAM Act of 2003 and other laws and regulations applicable to bulk or commercial email. In addition, Client’s bulk and commercial email must meet the following requirements:

• Client’s intended recipients have given their consent to receive email from you via some affirmative means, such as an opt-in procedure;
• Client’s procedures for seeking consent include reasonable means to ensure that the person giving consent is the owner of the email address for which consent is given;
• Client retains evidence of each recipient’s consent in a form that can be promptly produced on request, and you honor recipient’s and 21Thirteen Design, Inc.’s requests to produce consent evidence within 72 hours of receipt of the request;
• Client has procedures in place that allow a recipient to revoke their consent – such as a link in the body of the email, or instructions to reply with the word “Remove” in the subject line; Client honors revocations of consent within 48 hours, and notifies recipients that the revocation of their consent will be implemented in 48 hours;
• Client must post an email address for complaints (such as abuse@yourdomain.com) in a conspicuous place on any website associated with the email, you must register that address at abuse.net, and you must promptly respond to messages sent to that address;
• Client must have a Privacy Policy posted for each domain associated with the mailing;
• Client has the means to track anonymous complaints;
• Client may not obscure the source of an email in any manner, such as omitting, forging, or misrepresenting message headers or return addresses. Client’s emails must include the recipient’s email address in the body of the message or in the “TO” line of the email;
• The subject line of the email must clearly describe the subject matter contained in the email, and the message must include valid contact information; and
• Client must not attempt to send any message to an email address if 3 consecutive delivery rejections have occurred and the time between the third rejection and the first rejection is longer than fifteen days.

These policies apply to messages sent using 21Thirteen Design, Inc. services, or to messages sent from any network by you or any person on your behalf that directly or indirectly refer the recipient to a site or an email address hosted via your 21Thirteen Design, Inc. service. In addition, you may not use a third party email service that does not practice similar procedures for all its customers. These requirements apply to distribution lists prepared by third parties to the same extent as if the list were created by you.

21Thirteen Design, Inc. may test and otherwise monitor your compliance with its requirements. 21Thirteen Design, Inc. may block the transmission of email that violates these provisions. 21Thirteen Design, Inc. may, at its discretion, require certain Clients to seek advance approval for bulk and commercial email, which approval will not be granted unless the Client can demonstrate that all of the requirements stated above will be met.

Unsolicited Communications

You may not use your service to send email or any other communications to a person who has indicated that they do not wish to receive it. If the communication is bulk mail, then you will not be in violation of this section if you comply with the 48 hour removal requirement described above.

Vulnerability Testing

You may not attempt to probe, scan, penetrate or test the vulnerability of a 21Thirteen Design, Inc. system or network, or to breach 21Thirteen Design, Inc.’s security or authentication measures, whether by passive or intrusive techniques, without 21Thirteen Design, Inc.’s express written consent.

Newsgroup, Chat Forums, Other Networks

You must comply with the rules and conventions for postings to any bulletin board, chat group or other forum in which you participate, such as IRC and USENET groups including their rules for content and commercial postings. These groups usually prohibit the posting of off-topic commercial messages, or mass postings to multiple forums.

You must comply with the rules of any other network you access or participate in using your 21Thirteen Design, Inc. services.

Offensive Content

You may not publish, transmit or store on or via 21Thirteen Design, Inc.’s network and equipment any content or links to any content that 21Thirteen Design, Inc. reasonably believes:

• constitutes, depicts, fosters, promotes or relates in any manner to child pornography, bestiality, consensual or non-consensual sex acts;
• is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;
• is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
• is defamatory or violates a person’s privacy;
• creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with an investigation by law enforcement;
• improperly exposes trade secrets or other confidential or proprietary information of another person;
• is intended to assist others in defeating technical copyright protections;
• infringes on another person’s copyright, trade or service mark, patent, or other property right;
• promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking;
• is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to 21Thirteen Design, Inc.; or
• is otherwise malicious, fraudulent, or may result in retaliation against 21Thirteen Design, Inc. by offended viewers or recipients, or is intended to harass or threaten.

Content “published or transmitted” via 21Thirteen Design, Inc.’s network or equipment includes Web content, email, bulletin board postings, chat, tweets, and any other type of posting or transmission that relies on the Internet.

Copyrighted Material

You may not use 21Thirteen Design, Inc.’s network or services to download, publish, distribute, or otherwise copy or use in any manner any text, music, software, art, image, or other work protected by copyright law unless:

• you have been expressly authorized by the owner of the copyright for the work to copy the work in that manner; or
• you are otherwise permitted by established copyright law to copy the work in that manner.

It is 21Thirteen Design, Inc.’s policy to terminate in appropriate circumstances the services of customers who infringe on copyrighted material.

Email Retention Policy

The following rules apply to the retention of e-mails in e-mail account hosted on 21Thirteen Design, Inc. Mail Servers:

• All email in your inbox or personal folders that is either unread or marked unread will be deleted after 90 days.
• All read email will be retained indefinitely as long as you do not exceed the maximum storage quota for your mailbox. You can determine the available storage space by logging on to 21Thirteen Design, Inc.’s Webmail.
• All email in the trash folder will be deleted after 30 days.
• All email in the Spam detector folder will be deleted after 30 days.

Other

Client agrees to be bound by the following additional covenants:

• Client must have valid and current information on file with your domain name registrar for any domain hosted on the 21Thirteen Design, Inc. network.
• Client may only use IP addresses assigned to you by 21Thirteen Design, Inc. in connection with your 21Thirteen Design, Inc. services.
• Client agrees that if the 21Thirteen Design, Inc. IP numbers assigned to its account are listed on an abuse database (i.e. Spamhaus), Client will be in violation of this AUP, and 21Thirteen Design, Inc. may take reasonable action to protect its IP numbers, including suspension and/or termination of Client’s account and/or service, regardless of whether the IP numbers were listed as a result of Client’s actions.

9. Copyright and Intellectual Property Policy

21Thirteen Design, Inc. respects copyright laws and the intellectual property of others. 21Thirteen Design, Inc. may terminate Services and/or accounts for copyright infringement.

21Thirteen Design, Inc. will not use copyrighted or trademarked materials on any Client’s website without the express written consent of the copyright or trademark owner. It is Client’s responsibility to ensure that all content submitted to 21Thirteen Design, Inc. is original content and free from third-party copyright or trademark protection, or to obtain permission to use copyrighted or trademarked materials from the copyright or trademark owner. Client assumes full liability for any infringement of any third-party’s copyright or trademark rights as a result of the use of protected materials on Client’s website, including, but not limited to, any infringement due to website content, website design or the look and feel of Client’s website.

Client content that is sent to 21Thirteen Design, Inc. will remain the intellectual property of Client. 21Thirteen Design, Inc. does not return original content to Client unless a request to return the original content to Client is made in writing upon submission of the content, the content will be destroyed. 21Thirteen Design, Inc. will attempt to honor requests to return original content, however, 21Thirteen Design, Inc. has no liability and does not guarantee the return of any content to Client.

Graphic design, website designs, databases, stores, or programs created by 21Thirteen Design, Inc., are the property of 21Thirteen Design, Inc. until Client has paid all fees due.

The designs and database technology for all website products and Semi-Custom website products are proprietary. However, when you purchase a custom website from 21Thirteen Design, Inc. pursuant to the terms of these TOS, you own the design and license the technology from 21Thirteen Design, Inc.

10. International Use

Recognizing the global nature of the Internet, Client agrees to comply with all local rules regarding online conduct and acceptable content. Specifically, Client agrees to comply with all laws regarding the transmission of technical data exported from the United States, or the country in which Client resides and/or transacts business.

11. Interstate Communications

Client acknowledges that by using 21Thirteen Design, Inc.’s Services Client will be causing communications to be sent through 21Thirteen Design, Inc.’s computer networks, which may be located throughout the United States. Due to the nature of electronic communications, even communications that seem to be intrastate can result in the transmission of interstate communications. Client acknowledges that use of 21Thirteen Design, Inc.’s services results in interstate data transmissions.

12. Website Construction Procedure

Where applicable, with consultation and input from Client, 21Thirteen Design, Inc. will prepare the appropriate design and work with the content provided by Client for development of the website. Client must submit specified content to the design department before website design begins. Client must submit full content to 21Thirteen Design, Inc. before site can be considered completed.

After content is submitted by Client, the design is performed and the website is developed. Prior to the website being taken live, Client will receive a missing information notification if content is incomplete. Client will then have 48 hours to submit missing or incomplete content. If complete content is not received, (i) 21Thirteen Design, Inc. reserves the right to take the website live “as-is” and 21Thirteen Design, Inc.’s Services and obligations to bring the website live deemed complete and fulfilled in all respects, or (ii) 21Thirteen Design, Inc. may notify Client of such failure by Final Notification (as defined below) in accordance with Section 30 hereof, and if Client fails to respond within 60 days following the delivery of such Final Notification, be deemed in breach of these TOS and 21Thirteen Design, Inc. reserves all rights hereunder with respect to such breach.

In submitting content, links to sample sites Client likes are for general information purposes only and assist 21Thirteen Design, Inc. with the design of Client’s custom website. The functionality and detail of the sample sites will not be duplicated unless such functionality and detail are specifically included and itemized in 21Thirteen Design, Inc.’s proposal. Direct duplications of sample sites will not be permitted unless the original sample site owner provides express, written consent.

The design and content layout are completed by the designer and presented to Client for approval. After Client approves the design, development will ensue. Except as otherwise provided for herein, the website will go live when development is finished, final payment received, and the product is approved. 21Thirteen Design, Inc. may review the text before the website goes live to correct any possible errors, but is not required to do so. 21Thirteen Design, Inc. is not liable for the accuracy of information, typing or spelling errors in any of the content supplied by Client and embedded on the website. Client will be notified by email that the website is live.

Client understands, agrees, and acknowledges that 21Thirteen Design, Inc. does not guarantee a time frame for completion of ANY website or work. A website cannot be completed without submission of complete content, design approvals, and participation from Client. If Client continues submitting additional content throughout the design process, the design time frame is increased. If Client does not submit complete content and 21Thirteen Design, Inc. is not able to start or complete the website design and/or development, Client still is responsible for and agrees to pay all fees incurred according to mutually agreed upon timeline, including, but not limited to, set-up, enhancement, and annual hosting charges that begin accruing from date of sale. Revisions requested after content is embedded will be considered excess work. If Client requests additional content, custom programming, functionality, flash, e-commerce, or the use of a database, the overall development time will be extended. The obligations of Client hereunder are cumulative and essential for the completion of the Services by 21Thirteen Design, Inc., and Client agrees and acknowledges that failure to comply with any such obligations, duties and responsibilities as provided in these TOS beyond any applicable cure period shall be deemed a breach of these TOS.

13. Progress Reports

21Thirteen Design, Inc. shall contact or meet with Client on a mutually acceptable schedule to report all tasks completed, problems encountered, and recommended changes relating to the development and testing of the website. 21Thirteen Design, Inc. shall inform Client promptly by telephone or e-mail upon discovery of any event or problem that may delay significantly the development of the design and development work.

14. Timeline and Terms of Payment

Upon receipt of deposit, a timeline will be established between 21 Thirteen Design Inc. and Client for receipt of content and performance of work. Midterm payment and final payment will be due based upon the requirements of the mutually agreed upon timeline.

15. Developers Guarantee for Program Use

21Thirteen Design, Inc. agrees to notify Client of any licensing and/or permissions required for use of third-party software.

16. Changes/Revisions

Subject to the terms of these TOS, 21Thirteen Design, Inc. agrees to provide any and all Services, including but not limited to, the design and construction of a website or marketing services, pursuant to the specifications contained in the original accepted proposal. Any additions or changes to Services requested by Client that are outside of or beyond the scope of the original accepted proposal will be billed to Client at 21Thirteen Design, Inc.’s standard hourly rate ($150/hour), and Client agrees to pay all charges billed for such additions or changes. 21Thirteen Design, Inc. is not obligated to complete any additions or changes to Services requested by Client that are outside of the scope of work contained in the original accepted proposal. If 21Thirteen Design, Inc. does not agree to the Client’s requests for additions or changes to Services, Client still is obligated to pay all fees incurred and due. With respect to the design and construction of a website, Client will be provided two (2) opportunities to alter the proposed web design after delivery of the concept design by 21Thirteen Design, Inc. to the Client for approval.

17. Testing and Acceptance Procedures

21Thirteen Design, Inc. will make a good faith effort to test all deliverables thoroughly and make all necessary corrections as a result of such testing prior to sending the deliverables to Client. Upon receipt of the deliverables, Client shall either: (1) accept the deliverables and make the required milestone payment set forth therein; or (2) provide 21Thirteen Design, Inc. with written or e-mail notification of any corrections Client requires, and a suggested date for completion of required corrections. The suggested date for completion of required corrections shall be reasonable and mutually acceptable to both 21Thirteen Design, Inc. and Client. Client shall designate one representative who will send, receive, and accept all deliverables and communications between 21Thirteen Design, Inc. and Client. 21Thirteen Design, Inc. shall not have any obligation to consider for approval, or respond to, communication, deliverables, or materials submitted by any person other than the designated representative. Client has the right to change its designated person upon two (2) days’ prior written notice to 21Thirteen Design, Inc.

18. Client Approval

Client is responsible for testing and approving the functionality of all Services, including but not limited to websites and marketing services, upon 21Thirteen Design, Inc.’s request and notification that the Services and/or website or marketing services have been completed. Client’s responsibility includes, but is not limited to, testing the functionality of all Services, website pages, databases, e-commerce stores, payment functions, galleries, forums, etc. Upon Client’s approval of the Services and/or website to go live, Client agrees and acknowledges that Services have been rendered by 21Thirteen Design, Inc. and the functionality of the website has been tested and approved by Client.

Client acknowledges and agrees that if Client does not respond within 48 hours to 21Thirteen Design, Inc.’s request for approval and notification that the Services and/or website have been completed, the Services and/or website, along with the functionality of the Services and/or website and services rendered, 21Thirteen Design, Inc. will notify Client of such failure by Final Notification in accordance with Section 30 hereof, and if Client fails to respond within 60 days following the delivery of such notice, be deemed in breach of these TOS.

Client acknowledges and agrees that if Client does not respond to requests by 21Thirteen Design, Inc. for missing or incomplete information, 21Thirteen Design, Inc. will notify Client of such failure by Final Notification in accordance with Section 30 hereof, and if Client fails to respond within 60 days following the delivery of such notice, be deemed in breach of these TOS.

19. Warranty Period and Website and Online Marketing Maintenance

21Thirteen Design, Inc. agrees to provide Client with reasonable technical support and assistance to maintain and update the Services and/or website during a warranty period of sixty (60) days after publishing the Services and/or website on its final domain name (“Warranty Period”). Such technical support and assistance will be provided at no charge to Client for up to a total of two (2) hours. For technical support and assistance provided to Client by 21Thirteen Design, Inc. beyond two (2) hours, Client agrees to pay 21Thirteen Design, Inc. at its standard hourly rates ($150/hour). After the expiration of the Warranty Period, Client may enter into a new agreement with 21Thirteen Design, Inc. for Services and/or website maintenance (“Maintenance Agreement”) wherein 21Thirteen Design, Inc. agrees to provide reasonable technical support and assistance to Client to maintain and update the Services and/or website on the Internet for an agreed upon hourly fee. Any such fee will be due and payable when billed pursuant to the TOS. Such maintenance shall include correcting any errors or any failure of the Services and/or website to conform to the specifications and the development of enhancements to the originally contracted project. The Warranty Period shall not include the development of enhancements to the website.

Notwithstanding anything contained herein to the contrary, in the event of any changes including but not limited to domain name changes, hosting transfers, new hosting accounts, subdomains and DNS changes that may affect Client’s online services including but not limited to email service, ftp service, online storage, newsletter campaigns, marketing campaigns or any other service provided by a third party, Client agrees to inform 21Thirteen Design, Inc. of such services and provide login information or sufficient data so that 21Thirteen Design Inc. may take appropriate steps in advance to avoid interruption to these services as much as possible. 21Thirteen Design, Inc. is not responsible for interruption of or cancellation of such services due to any changes requested by client or performed in pursuit of the completion of Client’s project and expressly disclaims any and all representations or warranties, express or implied, with respect to interruption of any of the foregoing services.

20. Enhancements

If Client enters into a Maintenance Agreement with 21Thirteen Design, Inc., Client agrees that if Client wishes to modify and/or enhance the Services and/or website, Client will give 21Thirteen Design, Inc. the option to submit a bid or proposal to perform such modifications and/or enhancements prior to accepting or soliciting any competing bids or proposals.

21. Technical Support

21Thirteen Design, Inc.’s technical support department can be contacted at design@21Thirteen.com for any concerns with Client email accounts or any problems with hosting or functionality of the Services and/or website after the Services and/or website are live.

If Client uses 21Thirteen Design, Inc.’s technical support services, including but not limited to screen share sessions, Client acknowledges and understands that 21Thirteen Design, Inc. does not warranty that technical support services will meet Client’s requirements or be error free.

22. Customer Service

21Thirteen Design, Inc. strives to offer the best service available. Customer service complaints or concerns should be emailed to design@21thirteen.com.

23. Use and Storage

Client acknowledges that 21Thirteen Design, Inc. may establish general guidelines and limits concerning the use of 21Thirteen Design, Inc.’s Services and may modify these guidelines at any time. Limits may include but are not restricted to, the maximum number of days that email messages or other content will be retained (currently, 90 days), maximum number of email messages that may be sent from or received by an account, the maximum size of any email messages sent and the maximum disk space that will be allotted on 21Thirteen Design, Inc.’s servers on Client’s behalf. Subject to the terms hereof, 21Thirteen Design, Inc. will provide data backup services for each actively hosted website. Notwithstanding the foregoing, Client agrees and acknowledges that changes made by Client using WordPress editing tools or by 21Thirteen Design, Inc. may be lost if data loss occurs after a scheduled backup by 21Thirteen Design, Inc. and that 21Thirteen Design, Inc. is not responsible for any such data loss.

24. Updates to Live Website/Design Time

After the website is live, Client may wish to make changes or updates to the website from time to time. Most changes can be made using online editors and other tools provided by WordPress. The online editors may not be available for all websites, or all pages of a website and are subject to the WordPress terms of use and service. Availability of the online editors is dependent upon the functionality and specifications required for the Client’s website. For changes that cannot be made with the editors, Client may use available 21Thirteen Design, Inc. design hours. These changes must be requested through 21Thirteen Design, Inc.’s Updates Department at design@21thirteen.com. Design hours can be used for modifying the design or layout of the website. Design hours cannot be used toward the completion or modification of databases, custom programming, e-commerce or flash or other enhancements that must be purchased. Changes or updates that exceed the Client’s available “design hours” will be billed to the Client at the standard hourly rate.

21Thirteen Design, Inc. is not responsible for any changes Client makes to his, her or its website. Client is solely responsible and assumes all liability for any actions, modifications, edits, changes or alterations to the website made by Client which in any way renders, results in, or causes irreparable harm, damage, deletion, malfunction, virus and/or malware attack, or security breach to the website. Time required by 21Thirteen Design, Inc. to repair changes made by Client will be billed to Client at 21Thirteen Design, Inc.’s standard hourly rate if it exceeds available “design / development hours”.

25. Domain Names Purchased/Hosting Agreement

Annual hosting is billed from the date of sale, regardless of the date the website goes live, because hosting costs are incurred immediately. Server space is secured for the developing website for existing Clients. If 21Thirteen Design Inc. hosts the Client’s website, Client agrees to a two year hosting commitment, first year free, with 21Thirteen Design, Inc. At the conclusion of the initial one year hosting commitment, Client will be billed annually.

Websites, website designs, databases, stores, or programs created by 21Thirteen Design, Inc. are the property of 21Thirteen Design, Inc. until Client has paid all fees. At that time ownership of the site and its functionality is transferred to the Client’s control.

Upon transfer of domain and/or website to Client or another service provider, at anytime, Client agrees that 21Thirteen Design, Inc. has met in full its obligation to Client, and 21Thirteen Design, Inc. is released of all past and future obligations to the Client. Additional work and/or hosting done for Client must be agreed to in writing and paid for by Client.

26. Internet Access

Access to Internet will be provided to Client by a separate, third party Internet Service Provider (ISP). Client is solely responsible for entering into and maintaining any contract for service with an ISP. The ISP is not a party to this agreement.

27. Marketing Representations

21Thirteen Design, Inc. makes no representations as to the marketing of Client’s products, services or sales. Client’s obligation to pay fees due to 21Thirteen Design, Inc. are due at time of sale of website design, marketing and hosting services and are not contingent upon Client’s marketing of said website. Client is responsible for all marketing of Client’s website.

28. Billing Policy

Annual hosting and Services plans, including but not limited to marketing services, are billed and due upon transmission of the invoice. The Client hereby authorizes 21Thirteen Design, Inc. to renew and bill annual hosting fees every year, unless the Client cancels in writing after one year of annual hosting fees have been paid (end of second year).

Annual hosting amounts may vary depending upon the hosting package provided to the Client.

21Thirteen Design, Inc. reserves the right to change prices at any time including annual hosting amounts and hourly design, development and maintenance fees.

21Thirteen Design, Inc. accepts payment via wire transfer, check and credit card. Upon Client’s authorization of payment to 21Thirteen Design, Inc. via credit card, Client thereby authorizes all recurring annual hosting and/or additional services fees to be charged to the same method of payment for future charges until such authorization is withdrawn by Client in writing.

The Client may change payment methods with 30 days notice. To change payment methods Client should contact 21Thirteen Design, Inc.’s billing department. Client should not email new billing information for security purposes.

29. Billing Disputes

21Thirteen Design, Inc. charges up to a $39.00 fee for returned checks and a $200.00 fee to handle unauthorized credit card disputes. If 21Thirteen Design, Inc. does not receive payment in full when due, 21Thirteen Design, Inc. may, to the extent permitted by the law of the state of the billing address on file for Client at the time, charge a late fee of up to 1.5% per month (18% per annum), or a flat fee of $5 per month, whichever is greater, on any unpaid balance. Notwithstanding anything contained herein to the contrary, to the extent the applicable charges above exceed the maximum interest rate permitted by law, then the charges shall be the maximum amount permitted to be charged under applicable law. 21Thirteen Design, Inc. may, to the extent permitted by the law of the state of the billing address on file for Client at the time account is sent to a collection agency, also charge Client for any collection agency fees and/or attorney’s fees billed to 21Thirteen Design, Inc. for collecting unpaid amounts due and owing from Client. 21Thirteen Design, Inc. will not honor limiting notations made by a Client on a check.

If Client wishes to dispute a charge, Client must first contact 21Thirteen Design, Inc.’s billing department and must allow ten (10) business days for a response. To avoid any dispute about Client’s attempt to contact 21Thirteen Design, Inc., Client must send the request in writing to:

21Thirteen Design, Inc.
95 Washington Street 104-106
Canton, MA 02021
Attn: Billing Department

If Client initiates a credit card dispute the decision of the credit card company is made through an arbitration process and the decision of the credit card company shall be binding upon Client.

30. Languishing Projects

By accepting these TOS, Client agrees and acknowledges that the Services provided hereunder and under any “scope of work” or other “proposal” by and between the Client and 21Thirteen Design, Inc., are provided on a flat-fee, non-refundable basis, except as expressly provided herein. All Services provided hereunder and the delivery of any final project, website or other deliverable on the part of 21Thirteen Design, Inc. are subject to Client’s compliance with any and all covenants, representations, warranties or other obligations hereunder, including such obligations to provide, among other things specified herein and without limitation, content approvals, notifications, missing or incomplete information, content or other submissions requested by 21Thirteen Design, Inc. hereunder (“Client Obligations”). Client understands and acknowledges that if Client fails to comply with any Client Obligations, 21Thirteen Design, Inc. shall send client a written notice, notifying Client of its specific obligations with respect to the delivery of the product and/or website (a “Final Notification”) and that, if Client does not timely and adequately respond to such Final Notification within 60 days from delivery thereof, the Client shall be deemed in breach of these TOS and the Client’s account shall be deemed a “Languished Project.” Notwithstanding the foregoing, if Client can demonstrate to the reasonable satisfaction of 21Thirteen Design, Inc. that such failure was due to a reasonable delay, then Client’s account shall not be deemed a Languished Project, provided that Client promptly commence all actions reasonably necessary to assist 21Thirteen Design, Inc. in the completion of the Services. For the purposes of this Section, a “reasonable delay” shall mean any delay resulting from emergent or unforeseeable causes beyond the Client’s control; provided that Client takes reasonable measures to notify 21Thirteen Design, Inc. of such circumstances and mitigate the effect of such delay, and provided further that Client shall not receive the benefit of a “reasonable delay” if any such delay occurs more than once in a continuous 12-month period.

For the purposes hereof, a “Languished Project” shall include any Client project, website, account or other Services (or any subset thereof) performed on behalf of the Client as to which the Client has failed to adequately communicate with, respond to, approve or accept work or any project milestones, submit materials or Content when requested by, pay any sums or fees when due, or otherwise comply with the Client Obligations to 21Thirteen Design, Inc. as provided for herein, in each case, within 60 days of delivery of a Final Notification. A “Languished Project” shall also include any account or website, whether live or in working form, with respect to which the Client has conducted no transactional activity for a continuous period of 365 days. Upon the expiration of 60 days following the delivery of a Final Notification, 21Thirteen Design, Inc. shall send Client a notice informing Client that its account is deemed a Languished Project. Client agrees and acknowledges that upon the expiration of such 60-day period, Client shall be deemed in breach of these TOS and 21Thirteen Design, Inc. shall be deemed to have fully performed its obligations under these TOS, including under any proposal or scope of work, and that the Services will be deemed sufficiently performed as to such Languished Project and all fees paid to 21Thirteen Design, Inc. are non-refundable, unless otherwise provided herein or as agreed by the parties in writing. Upon the occurrence of a Languished Project, Client releases 21Thirteen Design, Inc. of all further obligations related thereto.

Notwithstanding anything contained herein to the contrary, the Client’s account shall not be deemed a Languished Project if the Client’s breach and/or inactivity is due in substantial part to the fault of 21Thirteen Design, Inc., or its affiliates, partners, assigns or subcontractors to deliver the Services or any deliverables hereunder as a result of circumstances within its control, including technology failure, commercially unreasonable delay in performing the Services, incompatible skill set with respect to the Services agreed upon, labor strike, insolvency and/or bankruptcy (“our fault”). If such delay is caused as a result of our fault, and unless mutually agreed upon otherwise, 21 Thirteen Design, Inc. will prorate, apportion and refund any upfront fees paid by Client to account for work actually performed and, at the Client’s request, will provide Client all deliverables in working form in a fashion that is usable by another professional web developer.

31. Termination/Cancellation of Services

21Thirteen Design, Inc., at its sole discretion, may terminate its Services and remove and discard any content, for any reason, including and without limitation, for lack of use, or if 21Thirteen Design, Inc. believes Client has violated the TOS. 21Thirteen Design, Inc. may also, at its sole discretion and at any time, discontinue providing Services, or any part thereof, with or without notice. Client agrees that any termination of access to 21Thirteen Design, Inc.’s Services under any provision of this TOS may be effected without prior notice and that 21Thirteen Design, Inc. may deactivate or delete Client’s account and all related information files. Client agrees that 21Thirteen Design, Inc. shall not be liable to Client or any third-party for any termination of Services. Paid accounts that are terminated will not be refunded. In addition, accounts that become 30-days delinquent may be terminated. 21Thirteen Design, Inc. also reserves the right to discontinue the designing of Client’s website at any time, at 21Thirteen Design, Inc.’s sole discretion.

If the Client cancels an account before the work is completed or the Services and/or website is live, a cancellation fee is retained per the Cancellation Fee and Refund Policy. Client agrees that all fees incurred and billed prior to the effective date of cancellation are valid and Client agrees to pay. Upon request for termination of Services, the Services will be terminated, including but not limited to the removal of any websites. A back-up copy of the website is not maintained by 21Thirteen Design, Inc.

Client agrees to pay all hosting fees and additional services fees owed from the time of sale until the effective date of cancellation, and at a minimum for hosting fees for one year. Client must notify 21Thirteen Design, Inc. in writing or via email to terminate the Services and avoid further annual hosting charges. It is Client’s responsibility to secure confirmation from 21Thirteen Design, Inc. that the request for termination has been received and no further hosting fees will be billed.

Requests for cancellation of Services should be sent in writing to:

21Thirteen Design, Inc.
95 Washington Street 104-106
Canton, MA 02021
Attn: Billing Department

32. Cancellation Effective Date

Client may terminate Services with 30-days written notice, after one full year of paid hosting. The effective date of cancellation will be 30-days from the date of 21Thirteen Design, Inc.’s receipt of written notice to terminate or cancel hosting. Any annual fees scheduled to bill after receipt of written notice to terminate or cancel, but before the effective date of cancellation, are valid and Client agrees to pay such amounts.

If Client has not paid all fees due for Services, such fees are due in full at the time of cancellation and Client authorizes 21Thirteen Design, Inc. to collect any outstanding fees due, subject to the Cancellation Fee and Refund Policy.

33. Cancellation Fee and Refund Policy

EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 33, ALL AMOUNTS PAID BY CLIENT ARE NON-REFUNDABLE AND ALL AMOUNTS PAYABLE BY CLIENT ARE NON-CANCELLABLE. Client agrees that all fees incurred and billed prior to cancellation date are valid and Client agrees to pay any and all such fees as may be billable for the providing of the Services hereunder.

WEBSITE DESIGN/DEVELOPMENT AND MARKETING SERVICES – Refunds of fees paid for design/development of website or marketing services may be issued on accounts cancelled within 3 days of the initial sale and prior to the completion of the website according to the following schedule:

A) A minimum of 25% of fees paid (“DEPOSIT”) by Client will be retained by 21Thirteen Design, Inc. on cancelled accounts even if no work has been started and no content has been submitted by Client. THIS DEPOSIT IS NON-REFUNDABLE.

B.) A minimum of 50% of fees paid by Client will be retained by 21Thirteen Design, Inc. on cancelled accounts if a consultation has been performed and/or work has been performed.

C) A minimum of a 50% of the total cost of the project is due or will be retained by 21Thirteen Design, Inc. on cancelled accounts if a design has been presented to Client.

D) A minimum of a 50% of the total cost of the project is due or will be retained by 21Thirteen Design, Inc. on cancelled accounts if 21Thirteen Design, Inc. has made multiple attempts to work with Client, and Client has not responded to those attempts.

E) A 100% cancellation fee will be retained by 21Thirteen Design, Inc. and NO REFUND issued if any changes and/or modifications requested by Client have been completed by 21Thirteen Design, Inc. No Refund will be issued on any website or marketing service cancelled after services have been rendered, including but not limited to, the design and development work having been completed and/or the website taken live.

F) All fees paid by Client will be retained and NO REFUND will be issued by 21Thirteen Design, Inc. if Client cancels after 45 days from the initial sale.

G) all fees paid by client with respect to a languished project are nonrefundable.

MINIMUM RETENTION FEE – Client agrees that a minimum retention fee of 25% will be retained by 21Thirteen Design, Inc. on all cancelled accounts even if no work has been started. The retention fee is charged to compensate 21Thirteen Design, Inc. for up-front expenses and services rendered, including but not limited to, costs incurred for initial communications, securing server space, creating the temporary website or space saver, employee expenses, marketing, and overhead costs.

ENHANCEMENT SALES – A 100% cancellation fee will be retained by 21Thirteen Design, Inc. and NO REFUND will be issued once work has begun on any enhancements purchased, including, but not limited to, databases, programming, logos, flash, galleries, rollovers, e-commerce stores, etc. Client agrees that a minimum cancellation fee of 50% will be retained by 21Thirteen Design, Inc. on all cancelled enhancement purchases if cancelled within 45 days of the enhancement sale and if work has not yet begun. NO REFUND will be issued by 21Thirteen Design, Inc. if Client cancels after 45 days from the enhancement sale. Enhancements or additional services purchased after the initial sale are separate purchases and are in addition to and separate from the original sale. If a Client cancels an enhancement the original sale is not cancelled.

ANNUAL HOSTING – Client agrees that there is NO REFUND of annual hosting fees or annual additional service fees incurred or paid by Client prior to cancellation date.

34. Copyright Protection

Subject to the terms hereof, Client is advised to copyright and protect all final art against duplication or alteration. 21Thirteen Design, Inc. is not responsible for any Client’s copyrightable material.

35. 21Thirteen Design, Inc., Inc.’s Proprietary Rights

Notwithstanding anything contained herein to the contrary, Client acknowledges and agrees that any works, designs, drawings, illustrations, artwork, schematics, content, copyrightable material, layouts, logic maps, source or object code, algorithms, logos, trademarks, trade names, inventions, and other intellectual property developed, conceived of or created solely by 21Thirteen Design, Inc. in the scope of performing the Services is the sole and exclusive property of 21Thirteen Design, Inc. 21Thirteen Design, Inc.’s Services may contain proprietary and confidential information that is protected by intellectual- and proprietary-rights laws. Client agrees to not reproduce, duplicate, copy, sell, resell or exploit any portion of 21Thirteen Design, Inc.’s Services or proprietary or confidential information.

36. Use of Client Information

Client hereby agrees that any information or ideas submitted to 21Thirteen Design, Inc. by any means may be used by 21Thirteen Design, Inc. without compensation or liability to Client for any purpose whatsoever, including but not limited to, developing websites, databases, and e-commerce and developing, manufacturing and marketing other products. This provision does not apply to Client content or to personal information that is subject to 21Thirteen Design, Inc.’s Privacy Policy.

Client herby gives permission to 21Thirteen Design, Inc. to use samples or links to Client’s website designed by 21Thirteen Design, Inc. for marketing and advertising purposes, including but not limited to, use in 21Thirteen Design, Inc.’s online portfolio.

37. Third-Party Services

From time to time third parties may offer services to 21Thirteen Design, Inc.’s clients. Use of such third-party services will be at Client’s own risk and subject to the terms and conditions of those third parties. Third-party services, including but not limited to, stock images, IDX, VOW, and other MLS services are the responsibility of and shall be paid by Client to its chosen provider. 21Thirteen Design, Inc. does not represent or warrant that use or access to any third-party services will be compatible, uninterrupted, error free, without defects or that Client will be able to access 21Thirteen Design, Inc.’s services. Client also agrees that 21Thirteen Design, Inc. is under no obligation to provide Client with any enhancements, updates, or fixes to make 21Thirteen Design, Inc.’s services accessible through any third-party applications.

38. Contract Service Providers

21Thirteen Design, Inc. may contract with Contract Service Providers to complete a portion, or all, of the Client’s custom website and/or Services. The Client agrees not to do business directly with the Contract Service Provider, nor to remit payment to the Contract Service Provider or any 21Thirteen Design, Inc. employee directly for services. All payments for services rendered must be made directly to 21Thirteen Design, Inc. Contract Service Providers are required to enter into employment contracts and to follow company policies and procedures. Contract Service providers are provided with only the information needed to complete the design or development portion of the Client’s Services and/or website and do not have access to Client’s personal information including payment information.

39. Disclaimer of Warranties

CLIENT’S USE OF 21THIRTEEN DESIGN, INC.’S, SERVICES IS AT CLIENT’S OWN RISK. 21THIRTEEN DESIGN, INC.’S SERVICES ARE PROVIDED “AS IS”. 21THIRTEEN DESIGN, INC. DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. 21THIRTEEN DESIGN, INC. DISCLAIMS ANY WARRANTIES REGARDING 21THIRTEEN DESIGN, INC. SERVICES INCLUDING THAT THEY WILL MEET CLIENT’S REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. 21THIRTEEN DESIGN, INC. DISCLAIMS ANY WARRANTIES REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF 21THIRTEEN DESIGN, INC.’S SERVICES, INCLUDING RESULTING SALES AND WEB TRAFFIC. 21THIRTEEN DESIGN, INC. DISCLAIMS ANY WARRANTIES REGARDING THE MARKETING OF CLIENT’S PRODUCTS, SERVICES, SALES, OR WEBSITE. 21THIRTEEN DESIGN, INC. DISCLAIMS ANY WARRANTIES REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED, ADVERTISED OR OBTAINED THROUGH 21THIRTEEN DESIGN, INC.’S SERVICES, OR LINKS PROVIDED BY 21THIRTEEN DESIGN, INC.’S SERVICES, AS WELL AS FOR ANY INFORMATION OR ADVICE PROVIDED BY 21THIRTEEN DESIGN, INC. OR OBTAINED THROUGH LINKS PROVIDED THROUGH 21THIRTEEN DESIGN, INC.’S SERVICES.

CLIENT UNDERSTANDS AND AGREES THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF 21THIRTEEN DESIGN, INC.’S SERVICES ARE DONE AT CLIENT’S OWN RISK AND THAT CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO CLIENT’S COMPUTER SYSTEM OR LOSS OF DATA OR OTHER LIABILITY THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. THE ABOVE EXCLUSIONS MAY NOT APPLY TO CLIENT.

40. Limitation of Liability

CLIENT UNDERSTANDS AND AGREES THAT21THIRTEEN DESIGN, INC., ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AND EMPLOYEES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, (EVEN IF 21THIRTEEN DESIGN, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM THE USE OF OR INABILITY TO USE 21THIRTEEN DESIGN, INC.’S SERVICES, RELIANCE ON 21THIRTEEN DESIGN, INC.’S SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF 21THIRTEEN DESIGN, INC.’S SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES.) THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM PRODUCTS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED THROUGH 21THIRTEEN DESIGN, INC.’S SERVICES OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF CLIENT’S DATA OR TRANSMISSIONS AND ANY STATEMENTS OR CONDUCT OF A THIRD PARTY OR ANY OTHER MATTERS RELATING TO 21THIRTEEN DESIGN, INC.’S SERVICES. SUCH LIMITATION SHALL FURTHER APPLY, WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED IN ANY WAY TO 21THIRTEEN DESIGN, INC.’S SERVICES.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CLIENT.

Without limiting the foregoing, under no circumstance shall 21Thirteen Design, Inc. be liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, or other casualties, illness, accidents, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non performance of third parties, or loss of or fluctuations in heat, light or air conditioning. 21Thirteen Design, Inc.’s full and complete liability, for any reason whatsoever, shall be limited to the full refund of all monies paid to 21Thirteen Design, Inc.

41. Tort Claims

Client waives all tort claims against 21Thirteen Design, Inc., its subsidiaries, affiliates, officers, employees and agents. The relationship between the parties is contractual in nature only. Client waives any tort claims that arise by act, or omission.

42. Indemnification

Client agrees to defend, indemnify and hold harmless 21Thirteen Design, Inc., its directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees that may arise or result from any content Client submits, posts, transmits or makes available through 21Thirteen Design, Inc.’s Services, from any product sold by Client, its agents or employees or assigns, from any Services provided or performed or agreed to be performed by 21Thirteen Design, Inc. or from Client’s violation of the TOS or Client’s violation of any rights of another. Client further agrees to defend, indemnify and hold harmless 21Thirteen Design, Inc., its directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising from or related to contracts, representations, agreements, promises, etc, made between Client and third parties, or arising from or related to Client’s negligence toward third parties.

43. Other Operating Systems Conversions

21Thirteen Design, Inc. shall be given first option at compiling the work for operating systems beyond the original use.

44. Unauthorized Use and Program Licenses

Client will indemnify 21Thirteen Design, Inc. against all claims and expenses arising from uses for which Client does not have rights to or authority to use. Client is and will be responsible for payment of any special licensing or royalty fees resulting from the use of graphics programs that require such payments.

45. Notice

Unless otherwise specifically provided, all notices required or permitted by the TOS shall be in writing and in English and may be delivered personally, or may be sent by email, facsimile or certified mail, return receipt requested, to the address set forth below. If Client chooses to send request by email or facsimile, a copy of the request must also be sent by mail (to the address below) as confirmation of the request.

21Thirteen Design, Inc., Inc.
95 Washington Street 104-106
Canton, MA 02021

46. Severability

If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will be removed from this Agreement without affecting the rest of this Agreement . The remaining provisions of this Agreement will continue to be valid and enforceable.

47. Jurisdiction

The TOS agreement shall be governed by the laws of the Commonwealth of Massachusetts. All legal proceedings are to be submitted exclusively to the jurisdiction of the courts in the Commonwealth of Massachusetts.

48. Venue

The TOS agreement shall be governed by the laws of the Commonwealth of Massachusetts, without regard to its choice of laws provisions. Each party irrevocably (i) agrees that any action or proceeding arising from or relating to this Agreement may be brought only in the courts of Massachusetts or the U.S. District Court located in Boston, Massachusetts, (ii) consents, for itself and in respect of its property, to the jurisdiction of each such court in any such action or proceeding, and (iii) waives any objection to proceeding in such venue, including that the forum is inconvenient. EACH PARTY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.

49. Governance

21Thirteen Design, Inc. may investigate any reported violations of this agreement, its policies or any other complaints and take any action it deems appropriate to protect its systems, facilities, Clients, and/or third parties.

50. Entire Agreement

This Agreement constitutes the entire understanding and contract between the parties and supersedes any and all prior oral or written agreements (including, but not limited to, any prior versions of the TOS). Except as expressly otherwise set forth in Section 1 of these TOS, any modifications to this TOS must be in writing and signed by an authorized officer of 21Thirteen Design, Inc. Without limiting the foregoing, notwithstanding any language to the contrary therein, no terms or conditions stated in Client’s purchase order or other order documentation shall be incorporated into or form any part of this TOS, and all such terms or conditions shall be null and void.

51. Interpretation, Understanding of Parties

Notwithstanding anything contained herein to the contrary, Client may cancel the Services and be entitled to a full refund of the fees paid within 3 days of acceptance of the Services and these TOS. Following the expiration of such 3-day period, these TOS shall be a binding obligation on the Client and 21Thirteen Design, Inc. and constitute the complete terms of the agreement between the parties. Client acknowledges and understands that Client has had adequate opportunity to review these TOS and consult its counsel with respect to the terms hereof. These TOS will be fairly interpreted in accordance with its terms and without any strict construction in favor of or against either party. The headings and captions are included for reference purposes only and do not affect the interpretation of the provisions hereof.

52. Waiver

The Client agrees that if 21 Thirteen Design, Inc. does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which 21 Thirteen Design, Inc. has the benefit of under any applicable law), this will not be taken to be a formal waiver of the Company’s rights and that those rights or remedies will still be available to 21 Thirteen Design, Inc.

53. General Information

This Agreement constitutes the entire understanding and contract between the parties and supersedes any and all prior oral or written agreements (including, but not limited to, any prior versions of the TOS). Any modifications to this agreement must be in writing and signed by an authorized officer of 21Thirteen Design, Inc. All representations not in writing are null and void. Written agreements may include, but are not limited to, emails and electronic acceptance of this TOS.