Facebook Business Pages Development Agreement
This FACEBOOK BUSINESS PAGES DEVELOPMENT AGREEMENT ("Agreement") is an agreement between Spry (the "Company") and the party set forth in the related order form (the "Customer" or "you") incorporated herein by this reference (together with any subsequent order forms submitted by the Customer, the "Order") and applies to the purchase of the services ordered by the Customer on the Order (the "Services"). The parties understand, acknowledge and agree that this is an online agreement which is being entered into in conjunction with the Order. Facebook.com is a third-party platform. The Company, the Services and this Agreement are in no way affiliated with, or sponsored, endorsed or approved, by Facebook. Facebook is a registered trademark of Facebook Inc.
PLEASE READ THIS AGREEMENT CAREFULLY.
TERM AND TERMINATION
A. Term of Agreement. This Agreement shall be effective as of the date set forth on the Order and shall remain in force until the Customer terminates the Monthly Maintenance for the Facebook Business Pages as set forth the Order. The Company cannot guarantee the Delivery Date but will use commercially reasonable efforts to perform the Services in an efficient and timely manner.
B. Termination. This Agreement may be terminated by either party if the other party breaches any material obligation provided hereunder upon written notice to the breaching party and the breaching party fails to cure such breach within thirty (30) days of receipt of such notice. This Agreement may be terminated by the Company (i) immediately if the Customer fails to pay any fees hereunder; or (ii) if the Customer fails to cooperate with the Company or hinders the Company's ability to perform the Services hereunder. The Customer agrees that the Company shall have the right to remove all content associated with the Customer's Facebook Business Pages upon termination of the Services.
COMPANY'S AND CUSTOMER'S RESPONSIBILITIES
A. Scope of Work. The Customer hereby retains the services of the Company to design Facebook Business Pages for the Customer in accordance with the Order which include the Initial Build and Monthly Maintenance as described below:
The "Initial Build" includes the following:
The "Monthly Maintenance" includes the following (additional details and terms will be provided to the Customer via email):
- Cover image creation and placement, and logo placement
- About Us page
- Products/Services page.
- Contact Us page
- Up to 5 customer provided images added to the 3 pages
- Professionally written page copy
- Adding or swapping text provided by the Customer
- Adding images
- Swapping images
- Updating the Contact Us information
B. Changes. Changes to the Order or to any of the specifications of the Facebook Business Pages shall become effective only when a written change request is executed by the Customer and approved by the Company ("Change Order"), and provided that such change falls within the scope of the Services offered during the Initial Build or Monthly Maintenance. The Company agrees to notify the Customer promptly of any factor, occurrence, or event coming to its attention that may affect the Company's ability to meet the requirements of this Agreement, or that is likely to occasion any material delay in the Services. In the event of a conflict between the terms of this Agreement and a Change Order, the terms of this Agreement shall govern.
C. Customer's Responsibilities. The Customer agrees to perform all tasks assigned to the Customer as set forth in this Agreement and the Order or Change Order, and to provide all assistance and cooperation to the Company in order to complete timely and efficiently the Facebook Business Pages. The Company shall not be deemed in breach of this Agreement in the event the Company's failure to meet its responsibilities and time schedules is caused by the Customer's failure to meet or delay in its responsibilities and time schedules set forth in this Agreement, Order or Change Order. In the event of any such failure or delay by the Customer (i) all of the Company's time frames, milestones, and/or deadlines shall be extended as necessary; and (ii) the Customer shall continue to make timely payments to the Company as set forth in this Agreement, Order and any Change Order(s) as if all time frames, schedules, or deadlines had been completed by the Company. The Customer shall be responsible for making, at its own expense, any changes or additions to the Customer's current systems, software, and hardware that may be required to support operation of the Facebook Business Pages.
FACEBOOK PAGE DESIGN
A. Design. The design of the Facebook Business Pages shall be based on the Customer's responses to the Facebook Business Pages questionnaire and subsequent consultations between the Customer and the Company as outlined in the Order. Text for the Facebook Business Pages text will be created by the Company based on information supplied by the Customer. Development of the Facebook Business Pages, with the exception of the Facebook Timeline Page will take place on the Customer's established web hosting service with the Company. All server technical issues are to be handled by the Company unless otherwise noted amongst the parties. Minor updates and changes include any minor modifications and modifications to work out backend database issues and functionality. This does not include adding features beyond the scope of the Order. The Company shall not include and may remove, without limitation, any of the following in the Facebook Business Pages, as determined in the Company's sole discretion: text, graphics, or any other content or links to other websites that might be viewed as obscene or promoting or engaging in any illegal activities. Notwithstanding anything to the contrary, all content provided by the Customer must comply with the Company's Acceptable Use Policy and all applicable Facebook policies and terms and conditions.B. Completion Date. The Company and the Customer shall work together to complete the Facebook Business Pages in a commercially reasonable manner. The Customer must supply the Company with a completed questionnaire within two (2) weeks of the date of the Order unless otherwise noted.
B. Copyright to the Facebook Page. The Customer acknowledges, understands and agrees that the Company may use its own and/or may purchase third party licenses for products or services that are necessary for the Company to design and develop the Facebook Business Pages. Such products may include, but are not limited to server-side applications, clip art, "back-end" applications, music, stock images, or any other copyrighted work (collectively, "Outside Content") which the Company deems necessary to purchase on behalf of the Customer to design and develop the Facebook Business Pages. The Customer further acknowledges and understands that any Outside Content used to design and develop the Facebook Business Pages is owned by the Company and/or such third parties and cannot be transferred to the Customer, is hereby specifically not transferred to the Customer and shall remain the property of the Company and/or such third parties. Outside Content which is owned and/or purchased by the Company may be used in the design and/or development of other Facebook Business Pages separate from the Customer. The Customer agrees that the Company and its subcontractors shall retain the right to display the Customer's Facebook Business Pages and any associated graphics and other web design elements of the Facebook Business Pages as examples of their work in their respective portfolios, including without limitation on the Company's website and other advertising materials.
This Agreement provides one (1) hour of Monthly Maintenance time to maintain the Customer's Facebook Page consisting of up to two (2) calls to request maintenance per month. Maintenance is limited to editing text and removing, replacing and adding images on all pages associated with the Facebook Business Pages.
A. Refunds. Facebook Business Pages may be cancelled for convenience during the Initial Term of this Agreement. A one time $25 Cancellation Fee will be assessed by Spry if the cancellation request occurs after the Welcome Call. Any Facebook Business Pages cancellation requests that occur during the Monthly Maintenance will not be refunded any amount of the Set Up charge, but will be subject to a pro-rated refund for the remaining annual service term.
B. Project abandonment. If after repeated attempts to begin, continue, or finalize the delivery of the Services, the Customer fails to participate, or becomes otherwise unresponsive to the Company's requests for a period of forty-five (45) days, the project may be considered abandoned, and the Company may reduce any refund the Customer may otherwise be entitled to zero ($0), and the Customer will have forfeited all rights to receive any refund for Services purchased online or as described in the original Order.
A. Company Indemnity. In performing the Services under this Agreement, the Company agrees not to include any content on Customer's Facebook Page that infringes the copyrights, trademark rights or privacy rights of any third party. If the Company becomes aware of any such possible infringement in the course of performing the Services, the Company shall promptly notify the Customer in writing and the Company shall have the right to replace any content that may be infringing, determined in the Company's sole discretion, with non-infringing content. The Company agrees to indemnify, defend, and hold the Customer, its officers, directors, members, employees, representatives and agents harmless from any and all claims, damages, liabilities, costs and expenses (including, but not limited to, reasonable attorneys' fees) incurred by the Customer as a result of any claim brought against the Customer by a third party based on an allegation that that any content provided by the Company infringes or violates the intellectual property or other rights of any third party. Notwithstanding the foregoing, the Company's indemnification obligations shall not apply to any content provided by the Customer. The Company's total liability under this Agreement shall be limited to the total amount of fees paid by the Customer.
B. Customer Indemnity. The Customer shall indemnify, defend and hold harmless the Company, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, agents, independent contractors and partners from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings, costs and expenses (including, but not limited to, reasonable attorneys' fees) incurred by the Company as a result of any allegation, claim, judgment, or adjudication against the Company (a) related to or arising from any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by the Customer (the "Customer Content") to the Company, or (b) that the Company's use of the Customer Content in connection with the Services infringes or violates the intellectual property rights or any other rights of a third party, including without limitation that such Customer Content violates any of Facebook's terms of service. The Customer's indemnification obligation is subject to the Company giving the Customer prompt written notice of the allegation, claim, judgment or adjudication, provided, however, that any failure to promptly provide such notice shall relieve the Customer of its indemnification obligations only to the extent of any actual prejudice suffered by the Customer as a result of such failure.
REPRESENTATIONS AND WARRANTIES
A. THE COMPANY DOES NOT WARRANT THAT ANY FUNCTIONS CONTAINED IN THE FACEBOOK BUSINESS PAGES WILL MEET THE CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OR APPEARANCE OF THE FACEBOOK BUSINESS PAGES WILL BE UNINTERRUPTED OR ERROR-FREE. FACEBOOK.COM IS A THIRD-PARTY PLATFORM. ACCORDINGLY, ANY ISSUES WITH THE FACEBOOK.COM WEBSITE LOADING OR CHANGES MADE BY FACEBOOK TO THEIR LAYOUT CODING MAY AFFECT THE FACEBOOK BUSINESS PAGES. THE COMPANY DOES NOT PROVIDE ANY TECH SUPPORT FOR FACEBOOK AND IS NOT RESPONSIBLE FOR ANY CHANGES OR TAMPERING THE CUSTOMER MAY DO TO THEIR FACEBOOK BUSINESS PAGES. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, THE COMPANY PROVIDES ITS SERVICES "AS IS" AND WITHOUT WARRANTY OF ANY KIND. THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY THE COMPANY AND THE COMPANY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
B. The Customer represents and warrants to the Company that it has the authority to enter into this Agreement and use the Services and that any and all elements of Customer Content furnished to the Company for inclusion in the Facebook Business Pages are owned by the Customer, or that the Customer has permission from the rightful owner to use each of such elements and that such Customer Content complies with all applicable Facebook policies and terms and conditions.
LIMITATION OF LIABILITY
A. IN NO EVENT WILL THE COMPANY OR ITS DIRECTORS, EMPLOYEES, AGENTS OR INDEPENDENT CONTRACTORS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM THE SERVICES, OR ANY OF CUSTOMER CONTENT OR OTHER MATERIALS ACCESSED OR DOWNLOADED THROUGH THE SERVICES, EVEN IF THE COMPANY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY'S LIABILITY TO YOU OR ANY PARTY CLAIMING THROUGH YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE TOTAL FEES PAID BY THE CUSTOMER TO THE COMPANY FOR THE SERVICES. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM HEREUNDER WILL NOT INCREASE THIS LIMIT.
Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.
RELATIONSHIP OF THE PARTIES
A. The Company, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership.
B. The Customer does not undertake by this Agreement, the Order or otherwise to perform any obligation of the Company, whether by regulation or contract. In no way is the Company to be construed as the agent or to be acting as the agent of the Customer in any respect, any other provisions of this Agreement notwithstanding.
NOTICE AND PAYMENT
A. Any notice required to be given under this Agreement shall be in writing and delivered to the other designated party at the email address listed in the Order.
B. Either party may change its address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
GOVERNING LAW; JURISDICTION
Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon or arising from an alleged tort, shall be governed by the substantive laws of the State of Massachusetts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any suit, action or proceeding concerning this agreement must be brought in a state or court located in Middlesex County, Massachusetts. EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
The Customer may not assign or transfer this Agreement or any of the Customer's rights or obligations hereunder, without the prior written consent of the Company. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. The Company may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of the Customer. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, successors and permitted assigns.
No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same of other provisions of this Agreement.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
This Agreement, including any documents incorporated herein by reference, constitutes the entire understanding of the parties, and revokes and supersedes all prior discussions and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby.
We may modify, add, or delete portions of this Agreement at any time. If we do this, we will post a notice that we have made significant changes to this Agreement on the Spry website for at least thirty (30) days after the changes are posted and will indicate at the bottom of this Agreement the date these terms were last revised. Any revisions to this Agreement will become effective the earlier of (i) the end of such thirty (30) day period or (ii) the first time You access or use the Services after such changes. If you do not agree to abide by this Agreement or any future modifications, you are not authorized to use or access the Services
This file was last modified June 21, 2013.