Terms & Conditions
Services required to be performed by Pulley to maintain a certain standard for a website environment, to be performed on a regular basis without requiring the prior consent of the Customer.
A fee for migrating web content from one hosting site to another at the direction of the Customer.
Additional optional services performed by Pulley to which Customer may subscribe, including optimization of the website(s).
All Maintenance, Optional Services and Support Services to be provided under the terms of this Plan.
Services pursuant to which Pulley will attend to any number of requests by Customer that may be made to update or enhance a website and/or its environment.
The tier of services as designated by Customer in Section 1 of this Subscription Plan.
General. Unless specified otherwise by Pulley, all payments require a major U.S. credit card on file with Pulley’s payment processor for recurring monthly or annual charges. It is the Customer’s responsibility to maintain a valid and up-to-date payment method.
Overages. Customer will be notified when Customer is approaching Customer’s limit for allotted time on its Plan. With Customer’s consent, any required time for Services exceeding Customer’s allotted time will be added to (a) Customer’s next monthly statement, if Customer has elected to pay monthly, or (b) a separate statement, if Customer has elected to pay annually. All overage charges will be billed at the indicated hourly rate for the applicable Plan tier.
Emergencies. The customer shall have the option to designate a request as an emergency. Emergency requests are billed at twice the applicable hourly rate. Such additional charges will be added to (a) Customer’s next monthly statement if Customer has elected to pay monthly, or (b) a separate statement, if Customer has elected to pay annually.
Third-Party Licenses. While it is the Customer’s responsibility to maintain all appropriate licenses in good standing, in the event that a new license is procured by Pulley and charged to Pulley’s account, each with Customer’s consent, then such additional charges will be added to (a) Customer’s next monthly statement if Customer has elected to pay monthly, or (b) a separate statement, if Customer has elected to pay annually.
1. Products and Services.
Pulley shall provide web design and related services (the “Services”) to Customer pursuant to one ore more Subscription Plans, all of which are incorporated herein by reference (each a “Plan”). Unless herein provided, the Plan will specify the Services, applicable fees, scope of work, appropriate project timelines, deliverables (the “Deliverables”), and any additional terms and conditions which differ from the signed Agreement, as mutually agreed upon in writing from time to time by the Parties.
1.2. Authorization and Modification.
Only authorized individuals may enter into and sign the Plan(s). Any deviation from or modification to an Plan must be by mutual written agreement, signed by an authorized representative of the Parties. In the event of any conflict or inconsistency between the provisions of an Plan and the provisions of the signed Agreement, the provisions of the Plan will govern and control with respect to the interpretation of that Plan; provided that the provisions of the Plan will be construed to give effect to the applicable provisions of the signed Agreement to the fullest extent possible
2. Fees, Payment, Taxes, and Acceptance.
Customer will pay Pulley the fees, charges, costs and other amounts set forth in each Plan (collectively, the “Fee(s)”). Customer agrees and acknowledges that Pulley may increase its Fees from time to time upon written notice to Customer and that any amendment or change request to a Plan may result in an increase in Fees. Unless otherwise specified in the applicable Plan, actual and reasonable expenses incurred by Pulley in connection with the Services shall be charged to Customer.
2.2. Invoicing and Payment.
Pulley shall invoice Customer, and Customer shall pay Pulley, as specified in a Plan. Pulley may charge Customer interest and late fees on any overdue and unpaid portion of the Fees in an amount equal to 1.5% per month. All payments shall be made in U.S. dollars.
The fees and expenses for Services are exclusive of all taxes Customer is obligated to pay.
2.4. Method of Delivery; Acceptance of Deliverables.
Pulley will deliver the Deliverables to Customer in a private, secure manner in accordance with the signed Agreement and all other applicable terms and policies. Upon receipt of the Deliverables, Customer shall have three business days (the “Acceptance Period”) to inspect the Deliverables and notify Pulley of any nonconformities. If Customer does not notify Pulley, the Deliverables shall be deemed accepted. If Customer notifies Pulley of any nonconformities during the Acceptance Period, then Pulley shall have a reasonable amount of time to, at Pulley’s sole option, fix, replace, or correct the Deliverables.
2.5. Acceptance of Policies.
Customer hereby agrees to abide by the following terms and policies of the Company as set forth and updated from time to time at the following URLs (collectively, the “Company Policies”):
Information Asset Classification Policy
Information Security Policy
Risk Management Plan
Browser Support Policy
3. Obligations, Representations, and Warranties.
3.1. Obligations, Representations, and Warranties of Customer.
Customer hereby represents and warrants that: (i) it shall not use, or be granted any rights or license to use, any intellectual property of Pulley; (ii) it shall operate its business in accordance with the Company Policies and with all applicable laws, rules, and regulations; (iii) it shall pay all fees and costs set forth in the signed Agreement and any exhibits hereto; (iv) it shall fulfill its responsibilities set forth herein and in any Plan and cooperate with Pulley as reasonably necessary for Pulley to perform the Services; (v) it has all requisite power and authority to enter into and perform its obligations under the signed Agreement and to carry out the transactions contemplated hereby; and (vi) the signed Agreement has been duly executed and delivered by Customer and constitutes a valid and binding obligation of Customer, enforceable in accordance with its terms.
3.2. Obligations, Representations, and Warranties of Pulley.
Pulley hereby represents and warrants that (i) it shall perform all Services in a professional and workmanlike manner using personnel with the requisite skill, experience, and qualifications customary in the industry; (ii) it has all requisite power and authority to enter into and perform its obligations under the signed Agreement and to carry out the transactions contemplated hereby; and (iii) the signed Agreement has been duly executed and delivered by Pulley and constitutes a valid and binding obligation of Pulley, enforceable in accordance with its terms.
4. Term and Termination.
The signed Agreement shall commence on the Effective Date and will remain in effect for the period set forth in the Plan (the “Term”).
4.2.1. Termination upon Breach.
If either Party breaches any material provision of the signed Agreement or any Plan and fails to remedy such breach within 30 calendar days or, where additional time is reasonably required, commence good faith efforts to remedy such breach within 30 calendar days of receipt of written notice from the nonbreaching Party, then the non-breaching Party may immediately terminate the Plan or, if applicable, the signed Agreement. Notwithstanding the foregoing, the Parties agree that the breach of a Plan is a breach only of such Plan and the non-breaching Party may only terminate the relevant Plan as a result of such breach and that Pulley may suspend performance under an Plan due to Customer’s failure to fully pay the Fees. Either Party may terminate the signed Agreement and any Plan then in effect upon written notice to the other Party if the other Party (i) discontinues its business; (ii) files a petition for bankruptcy; (iii) becomes insolvent; or (iv) makes an assignment for the benefit of creditors.
4.2.2. Termination by Customer.
Customer may terminate the signed Agreement or any Plan by providing written notice (a “Customer Termination Notice”) to Pulley within ten (10) days of expiration of the Term.
4.2.3. Mutual Agreement to Terminate.
The Parties may mutually agree to terminate the signed Agreement or any Plan by providing 30 days’ written notice, unless otherwise prohibited in the Plan.
4.2.4. Effect of Termination.
In the event of termination, Customer shall immediately pay Pulley the entire Fee owed and payable to Pulley for Services provided up to the date of termination and/or the applicable Plan, plus reimburse Pulley for any costs incurred or committed to prior to such termination. Additionally, the Parties shall cooperate in good faith with respect to the timely and effective transfer to the other Party of any Confidential Information (as defined below), data, or other information in such Party’s possession or control, wherever situated, including, but not limited to, any data or other information under the control or possession of any third party service provider described in the signed Agreement.
5. Proprietary Information; Confidentiality.
5.1. Proprietary Rights.
“Proprietary Rights” means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trade marks), services marks, trade names, internet domain names, copyrights (including rights in computer software), moral rights, database rights, design rights, rights in know-how, rights in inventions (whether patentable or not) including, but not limited to, any and all renewals or extensions thereof, and all other proprietary rights (whether registered or unregistered, and any application for the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world including, but not limited to, any and all renewals or extensions thereof.
5.2. Reserved Technology.
“Reserved Technology” means all hardware, software, technology, data, devices, techniques, processes, skills, tools, interfaces, database structures, wizards, templates, engines, ideas, inventions, discoveries or other knowledge or materials of any kind, together with any improvements, enhancements, revisions or upgrades thereto, that Pulley uses or refers to in completing the Services or Deliverables for Customer and that: (i) were developed, conceived, created, or obtained by Pulley prior to being used to provide the Services hereunder; or (ii) were developed, conceived, created, or obtained by Pulley in the course of providing the Services hereunder other than any Proprietary Rights of Customer specifically listed in an Plan as belonging to Customer. Pulley shall own all right, title, interest, and intellectual property rights in, to, and under the Reserved Technology, and the Reserved Technology shall be the sole and exclusive property of Pulley. All right, title, interest, and intellectual property rights in and to any Third Party Products (as defined below) shall be the sole and exclusive property of the applicable supplier or manufacturer of such Third Party Products.
5.3. Customer Proprietary Rights.
“Customer Proprietary Information” means any and all Proprietary Rights of Customer. The Parties acknowledge that Customer Proprietary Information is owned by Customer and, except as provided in the signed Agreement, that Pulley has no right of ownership in the Customer Proprietary Information. Pulley agrees that it will protect the rights of Customer in the Customer Proprietary Information and agrees that it will not sell, sublicense, or otherwise make the Customer Proprietary Information available to any unauthorized party, except as set forth in Section 9.6.
“Confidential Information” means all information identified by a Party as confidential including, but not limited to, a Party’s information regarding its business, employees, financial condition, products, services, operation, or other financial and business matters. Each Party’s Confidential Information shall (i) remain the sole property of that Party; and (ii) be used by the other Party only as described herein and may not be disclosed, provided or otherwise made available to any other third party except that such Confidential Information may be disclosed to the other Party’s employees or agents who have a need to know in the scope of their work during the time they are performing services under the signed Agreement and are under the other Party’s security and control. Confidential Information does not include (i) information that the recipient can establish was already known to the recipient at the time it was disclosed in connection with the signed Agreement; (ii) information that is developed independently by the recipient or received from another third party lawfully in possession of the information and having no duty to keep the information confidential; (iii) information that becomes publicly known other than by a breach of the signed Agreement; or (iv) information disclosed in accordance with a valid court order or other valid legal processes. Each Party agrees to hold the Confidential Information of the other Party in strictest confidence, not to use such Confidential Information except for the purposes permitted hereunder, and not to copy, reproduce, distribute, publish, or disclose such Confidential Information to any person except as expressly permitted by the signed Agreement.
5.5. Customer Data.
Customer, not Pulley, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all data, and, unless otherwise agreed to in writing by the Parties, Pulley shall not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store such data.
PULLEY EXPRESSLY DISCLAIMS LIABILITY RELATED TO THIRD PARTY PRODUCTS AND DOES NOT WARRANT THAT THE OPERATION AND USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERRORFREE. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE SIGNED AGREEMENT, ALL DELIVERABLES, SERVICES, SOFTWARE, OR HARDWARE ARE PROVIDED “AS-IS” AND PULLEY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE OF, ANY SERVICE OR OTHER DELIVERABLES PROVIDED HEREUNDER OR UNDER ANY PLAN. CUSTOMER ACKNOWLEDGES THAT IT IS A SOPHISTICATED PARTY TO THE SIGNED AGREEMENT AND RECOGNIZES AND AGREES THAT THIS PROVISION IS AN IMPORTANT FACTOR IN PULLEY’S WILLINGNESS TO PERFORM SERVICES HEREUNDER.
7. Limitation of Liability.
7.1. General Limitation of Liability.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUES, OR SAVINGS. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER (INCLUDING THE SIGNED AGREEMENT AND ALL PLANS), WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO PULLEY IN THE IMMEDIATELY PRECEDING THREE MONTHS UNDER THE AGREEMENT FROM WHICH THE CLAIM ARISES.
7.2. No Liability from Services Declined.
Company shall not be liable for any losses to Customer stemming from failures by Customer to provide adequate accessibility [unless Customer has contracted specifically for accessibility support per the Subscription Plan], in which case the other provisions of this Section 7 shall still apply.
7.3. Other Limitations.
The Services may be used only for lawful purposes, and Customer shall comply with all applicable laws and the Company Policies. Customer shall not knowingly permit access to or display information containing any defamatory, offensive, threatening, obscene, or otherwise illegal content or materials protected by law. UNDER NO CIRCUMSTANCES SHALL PULLEY BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR SECURITY BREACHES, VIRUSES, HACKED SERVERS, WORMS, LOST OR STOLEN DATA, OR CORRUPTED DATA, UNLESS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF PULLEY.
8.1. Indemnification by Customer.
Customer shall indemnify, defend, and hold harmless Pulley and its affiliates, officers, managers, members, directors, employees, agents, successors, and assigns, for, from, and against all claims, demands, liabilities, damages, and costs including, without limitation, its reasonable attorneys’ fees and other costs of defense arising from or relating to (i) Customer’s breach of any terms, representations, warranties, or covenants of the signed Agreement or any Plan executed in connection herewith; (ii) the use of the Services and Deliverables in the conduct of its business; (iii) any violation of applicable law; or (iv) any claims of infringement of the intellectual property rights of any third party.
8.2. Indemnification by Pulley.
Pulley shall indemnify, defend, and hold harmless Customer and its affiliates, officers, managers, members, directors, employees, agents, successors, and assigns, for, from, and against all claims, demands, liabilities, damages, and costs including, without limitation, its reasonable attorneys’ fees and other costs of defense, arising from or relating to (i) Pulley’s breach of any terms, representations, warranties, or covenants of the signed Agreement or any Plan executed in connection herewith; or (ii) any claims of infringement of the intellectual property rights of any third party (but excluding Third Party Products).
8.3. Party seeking Indemnification.
The Party seeking indemnification (“Indemnitee”) shall provide the other Party (“Indemnifying Party”) prompt written notice of any knowledge it may have of such an infringement or other indemnity claim, and the Indemnitee shall reasonably cooperate in the defense and settlement of any such claim. The Indemnifying Party shall have the right to control the defense, negotiation, and settlement of any such claim and the Indemnifying Party shall pay all damages and costs awarded by a court of competent jurisdiction against Indemnitee arising out of such claim or the amount of any settlement to which the Indemnifying Party may agree, provided, however, the Indemnifying Party shall not settle any claim without the prior consent of Indemnitee if such settlement would be adverse to Indemnitee’s interests.
9. Additional Terms
Customer acknowledges that Pulley may include Customer’s name in its published client lists and may issue to the general public announcements and written statements, including pictures of the Services and/or Deliverables, concerning the existence of the signed Agreement and the general substance of Services to be performed and performed hereunder, provided that Pulley’s maintains the confidentiality of all proprietary and Confidential Information. Customer hereby grants to Pulley a limited right to use any and all trademarks of Customer in furtherance of the rights granted to Pulley by Customer pursuant to this Section. Pulley acknowledges such trademarks remain the proprietary property of Customer and Pulley shall have no right to use any such trademark outside of the scope of the signed Agreement.
9.2. Relationship between the Parties.
The Parties are acting as independent contractors. Pulley shall not be considered or deemed to be an agent, employee, joint venture, or partner of Customer. Pulley’s personnel shall not be considered employees of Customer, shall not be entitled to any benefits that Customer grants its employees and have no authority to act or purport to act on Customer’s behalf. Neither Customer nor Pulley has the right, and shall not seek, to exercise any control over the other Party. Each Party shall be solely responsible for hiring, firing, promoting, demoting, rates of pay, paying taxes, benefits, and other terms and conditions in regard to its own personnel.
All notices to be given by the Parties hereto shall be in writing and shall be deemed to be properly given when personally delivered to the address specified on the signature blocks below or when sent by e-mail, or to such other address as either Party shall have notified the other, in like manner, to be its proper business address.
If any controversy or claim arises relating to the signed Agreement, the Parties will first attempt in good faith to negotiate a solution to their differences. If negotiation does not result in a resolution within 30 days of when one Party first notifies the other of the controversy or claim, then prior to initiating any legal proceeding, the Parties agree, understand, and acknowledge that (i) the Parties must first participate in mediation with an experienced third-party mediator mutually agreeable to the Parties; (ii) the Party desiring to initiate such action or proceeding must put the other Party on written notice of the dispute and the nature of such dispute; and (iii) the Parties agree to share equally in the costs of the mediation. If mediation does not result in a resolution of the dispute, either Party may elect to pursue other legal proceedings.
9.5. Jurisdiction and Venue; Choice of Law.
The signed Agreement and all attachments hereto shall be governed by and construed in accordance with the laws of the State of New York, without reference to its conflict of laws provisions. With respect to any litigation based on, arising out of, or in connection with the signed Agreement and all attachments hereto, the Parties expressly submit to the personal jurisdiction of the state and federal courts located in Orange County, New York, and the Parties expressly waive, to the fullest extent permitted by law, any objection that they may now or later have to the laying of venue of any such litigation brought in any such court referred to above, including without limitation, any claim that any such litigation has been brought in an inconvenient forum.
Pulley may engage subcontractors in connection with its performance of the Services hereunder, which subcontractors shall comply with the terms set forth in the signed Agreement.
Customer may not assign or transfer the signed Agreement or any agreement executed in connection herewith or any of its rights and obligations hereunder without prior written consent of Pulley. Subject to the foregoing, the signed Agreement shall be binding upon, and shall inure to the benefit of, the Parties and their respective successors and permitted assigns. Any assignment or assumption without Pulley’s prior written consent shall be null and void.
9.8. Survival of Terms.
Any terms of the signed Agreement, which by their nature are intended to extend beyond the signed Agreement’s expiration or termination shall remain in effect until fulfilled including, but not limited to, any payment obligation of Customer hereunder, and shall apply to respective successors and assignees.
9.9. Counterparts; Delivery.
The signed Agreement may be executed simultaneously in one or more counterparts, but all such counterparts taken together will constitute one and the same Agreement. The exchange of copies of the signed Agreement and of signature pages by facsimile transmission, .pdf delivered via email, or other electronic means will constitute effective execution and delivery of the signed Agreement as to the Parties and may be used in lieu of the original Agreement for all purposes.
The signed Agreement is not exclusive.
Ownership of Deliverables. Customer shall receive all rights, title, and interest in, to, and under the Deliverables upon full payment of the Fee.
9.12. Force Majeure.
No Party shall be liable for any delay or failure in performance due to events outside the defaulting Party’s reasonable control including, without limitation, acts of god, strikes, riots, war, acts of terrorism, fire, epidemics, pandemics or delays of common carriers or other circumstances beyond its reasonable control (a “Force Majeure Event”). The obligations and rights of the excused Party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. If the performance of the defaulting Party does not resume within six months of a Force Majeure Event, the other Party shall have the right to terminate the signed Agreement without penalty.
Except as set forth in Section 1.2, no alteration, amendment, waiver, cancellation, or any other change in the signed Agreement shall be valid or binding on either Party unless mutually assented to in writing by authorized representatives of both Parties. The captions and headings used in the signed Agreement are used for convenience only and are not to be given any legal effect. No waiver of any of the provisions of the signed Agreement shall constitute a waiver of any other provision of the signed Agreement unless expressed so in writing. The failure of either Party to enforce at any time any of the provisions of the signed Agreement, or the failure to require at any time performance by either Party of any of the provisions of the signed Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a Party to enforce each and every such provision thereafter. If any provision of the signed Agreement is adjudged by a court to be invalid, void, or unenforceable, the Parties agree that the remaining provisions of the signed Agreement shall not be affected thereby.
9.14 Termination and Assignment of Prior Agreements.
Customer represents that it is or has been a client or customer of Volum8, Inc., (“Volum8”), an affiliate of Pulley, and has a valid service agreement in place with Volum8 (the “Prior Agreement”). Volum8, Company, and Customer all acknowledge the respective intention for this Subscription Plan and Agreement to supersede and replace any Prior Agreement, which Prior Agreement shall be considered void and terminated immediately or as soon as possible hereafter in accordance with its terms.