Terms of Service
Updated: March 6th, 2013
The following agreement ("Agreement") is entered into between you ("Client" or "you") and 3plains, a Minnesota Limited Liability Corporation having a business at 1160 Vierling Dr Suite #309 Shakopee, MN 55379 and is made effective on the date of the electronic acceptance. This agreement sets forth the terms and conditions that govern the products and services (collectively, known as the "Services") provided by 3plains.
Your electronic acceptance signifies that you have read, understood and agreed to be bound by the terms and conditions of this Agreement and that by such acceptance you agree that any previous agreements between you and 3plains will be terminated and superseded by this Agreement.
3plains, in its sole and absolute discretion, may change or modify this Agreement, and the corporate policies and/or Service Specific Terms which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon the (i) electronic notification advising you of such changes or modifications (ii) your continued use of the Services after 3plains posts the amended Agreement to 3plains.com.
The Services found at this Site are available only to Clients who can form legally binding contracts under applicable law. You represent and warrant that you are (i) at least eighteen (18) years of age and/or (ii) otherwise recognized as being able to form legally binding contracts under applicable law. You further represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom 3plains is legally prohibited to provide the Services.
3. Point of Contact
Client shall designate a single Point of Contact ("Point of Contact") on the accompanying web form. Client's Point of Contact shall have full authority to enter into agreements and make binding decisions on behalf of Client. Client agrees that 3plains may rely on representations made by Client's Point of Contact. 3plains is under no obligation to accept instructions from anyone other than the Point of Contact.
4. Fees and Payments
4.1 Fees. In consideration of the Services to be performed by 3plains, Client shall pay to 3plains fees in the amounts set forth in the Proposal.
4.2 Taxes. All fees charged by 3plains for the Services are exclusive of all taxes, VAT and similar fees now or in the future on the transaction and/or the delivery of Services. If 3plains is required to pay any such taxes, Client will, upon receipt of 3plains' invoice, promptly reimburse 3plains for any such taxes paid by 3plains.
4.3 Correspondence. All billing is sent via electronic mail and Client agrees to maintain a current email address with 3plains at all times.
4.4 Payments. In consideration of the Services to be performed by 3plains, Client shall pay to 3plains fees according to the payment schedule set forth in the Proposal. 3plains accepts credit card, debit card, electronic check, and paper check payments. Client payments are due on the 1st of every month or upon completion of a project, payments will be processed automatically. In the event payment is not approved the client will be notified via electronic mail and will be given a 15 day grace period to resolve the past due balance in their client account. On the 16th day the account will be temporarily suspended until a payment has been received. If the past due balance is not resolved by the end of the month, the client's account will be purged, website removed off 3plains servers, files deleted and email will become inoperable. Accounts that have been purged will be charged a reactivation fee of $250.00 (USD), plus the past due balance. When 3plains receives payment and or reactivation fee, 3plains has 24 hours within a normal business hours to reactivate the client's account.
4.5 Electronic mail Reminders. Invoices are sent out via electronic mail on the 10th of every month as a reminder of their upcoming payment due on the 1st of the following month.
4.6 Remaining balances must be paid before accounts go live or final art is released.
4.7 Canceling Services. To terminate your services, you must follow the procedure in Section 16 of this Agreement. To ensure that you are not billed for another month of service, you must terminate your services before your billing cycle due date. All services will be terminated on the last day of your billing cycle.
4.8 Refunds. If a refund is issued, the refund will fall in our billing cycle which is the 1st or the 16th of every month. Refunds will be paid by either by refunding the credit card or by a 3plains company check.
4.9 Refunds on Down-payments. Once a down-payment has been made there are no refunds unless you cancel the Proposal within 7 days.
5. Relationship of the Parties
5.1 Independent Contractor. 3plains is an independent contractor, not an employee of Client or any company affiliated with Client. 3plains shall provide the Services under the general direction of Client, but 3plains shall determine, in 3plains' sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. 3plains and the work product or Deliverables prepared by 3plains shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
5.2 Agents. 3plains shall be permitted to engage and/or use third party agents or other service providers as independent contractors in connection with the Services (“3plains Agents”). Notwithstanding, 3plains shall remain fully responsible for such 3plains Agents' compliance with the various terms and conditions of this Agreement.
5.3 No Solicitation. During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any 3plains employee, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that 3plains shall be entitled to an agency commission of, either (a) 25 percent of said person's starting salary with Client, or (b) 25 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. 3plains, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
5.4 No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by 3plains, and 3plains shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by 3plains.
6. Confidential Information
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
7. Warranties and Representations
7.1 By Client. Client represents, warrants and covenants to 3plains that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) to the best of Client's knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
7.2 By 3plains. 3plains hereby represents, warrants and covenants to Client that 3plains will provide the Services identified in the Proposal in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services. 3plains further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the product of 3plains and/or its independent contractors, (ii) in the event that the Final Deliverables include the product of independent contractors commissioned for the Project by 3plains, 3plains shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for 3plains to grant the intellectual property rights provided in this Agreement, and (iii) to the best of 3plains' knowledge, the Final Art provided by 3plains and 3plains' subcontractors does not infringe the rights of any party and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of 3plains shall be void. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, 3PLAINS MAKES NO WARRANTIES WHATSOEVER. 3PLAINS EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.
8.1 By Client. Client agrees to indemnify, save and hold harmless 3plains from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client's responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances 3plains shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and (b) 3plains provides Client with commercially reasonable assistance, information and authority necessary to perform Client's obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by 3plains in providing such assistance.
8.2 By 3plains. Subject to the terms, conditions, express representations and warranties provided in this Agreement, 3plains agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with 3plains' representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise as a result of negligence, omission, error, or misconduct of Client provided that (a) Client promptly notifies 3plains in writing of the claim; (b) 3plains shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide 3plains with the assistance, information and authority necessary to perform 3plains' obligations under this section. Notwithstanding the foregoing, 3plains shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by 3plains.
8.3 Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF 3PLAINS ARE SOLD "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS". IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF 3PLAINS, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“3PLAINS PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT'S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT TO 3PLAINS FOR SERVICES. IN NO EVENT SHALL 3PLAINS BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY 3PLAINS, EVEN IF 3PLAINS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. Term and Termination
9.1 This Agreement shall commence upon the date of electronic acceptance and shall remain effective until the Services are completed and delivered as described in the Proposal.
9.2 This Agreement may be terminated: (a) at any time by either party effective immediately upon notice; (b) by mutual agreement of the parties; (c) immediately where either party becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or (d) upon expiration of a ten (10) day cure period where one party breaches any of its material responsibilities or obligations under this Agreement and fails to cure such breach within ten (10) days from receipt of written notice of such breach.
9.3 In the event of termination, 3plains shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by 3plains or 3plains' agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
9.4 In the event of termination by Client and upon full payment of compensation as provided herein, 3plains grants to Client such right and title as provided for in Section 14 of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
9.5 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party's request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
10.1 General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at 3plains' standard hourly rate of $150.00 (USD) per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. 3plains may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
10.2 Substantive Changes. If Client requests or instructs Changes that amount to a revision in or near excess of twenty five percent (25%) of the time required to produce the Deliverables, and or the value or scope of the Services, 3plains shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by 3plains.
10.3 Timing. 3plains will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client's concerns, objections or corrections to 3plains. The 3plains shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that 3plains' ability to meet any and all schedules is entirely dependent upon Client's prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client's performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or 3plains' obligations under this Agreement.
10.4 Testing and Acceptance. 3plains will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within five (5) business days of receipt of each Deliverable, shall notify 3plains, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and 3plains will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
The terms of the Proposal shall be effective for thirty (30) days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
12. Client Responsibilities
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner;
12.1 Coordination of any decision-making with parties other than the 3plains.
12.2 Provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal.
12.3 Final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.
All displays or publications of the Deliverables shall bear accreditation in 3plains' name in the form, size and location as incorporated by 3plains in the Deliverables, or as otherwise directed by 3plains. 3plains retains the right to reproduce, publish and display the Deliverables in portfolios, websites, galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence, promotional or advertising purposes, and to be credited with authorship of the Deliverables in connection with such uses.
14. Intellectual Property
14.1 Rights to Final Art deliverables. 3plains hereby grants to Client the exclusive, perpetual and worldwide right and license to use, reproduce and display the Final Art solely in connection with the Project as defined in the Proposal and in accordance with the various terms and conditions of this Agreement.
14.2 Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to 3plains a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with 3plains' performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
14.3 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. 3plains shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances 3plains shall inform Client of any need to license, at Client's expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client's use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless 3plains from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client's failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
14.4 Preliminary Works. 3plains retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to 3plains within thirty (30) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of 3plains.
14.5 Original Artwork. 3plains retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to 3plains within thirty (30) days of completion of the Services.
14.6 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of-pocket expenses due, 3plains assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by 3plains for use by Client as a Trademark. 3plains shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless 3plains from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client's use and/or failure to obtain rights to use or use of the Trademark.
14.7 3plains Site Manager. 3plains Site Manager are and shall remain the exclusive property of 3plains. 3plains hereby grants to Client a nonexclusive, nontransferable, perpetual, worldwide license to use the 3plains Site Manager solely to the extent necessary with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any 3plains Site Manager comprising any software or technology of 3plains.
15. Print-specific Terms and Conditions
15.1 Samples. Client shall provide 3plains with ten (10) of samples of each printed or published form of the Final Deliverables, for use in 3plains' portfolio and other self-promotional uses. Such samples shall be representative of the highest quality of the work produced.
15.2 Finished Work. The printed work, and the arrangement or brokering of the print services by 3plains, shall be deemed in compliance with this Agreement if the final printed product is within the acceptable variations as to kind, quantity, and price in accordance with current or standard trade practices identified by the supplier of the print and print-related services. Whenever commercially reasonable and if available, 3plains shall provide copies of the current or standard trade practices to Client. Notwithstanding, 3plains shall have no responsibility or obligation to negotiate changes or amendments to the current or standard trade practices.
16. Interactive-specific Terms and Conditions
Additional Warranties and Representations.
16.1 Deficiencies. Subject to the representations and warranties of Client in connection with Client Content, 3plains represents and warrants that the Final Deliverables will be free from Deficiencies. For the purposes of this Agreement, “Deficiency” shall mean a failure to comply with the specifications set forth in the Proposal in any material respect, but shall not include any problems caused by Client Content, modifications, alterations or changes made to Final Deliverables by Client or any third party after delivery by 3plains, or the interaction of Final Deliverables with third party applications such as Web browsers other than those specified in the Proposal. The parties acknowledge that Client's sole remedy and 3plains' sole liability for a breach of this Section is the obligation of 3plains to correct any Deficiency identified within the Warranty Period. In the event that a Deficiency is caused by Third Party Materials provided or specified by 3plains, 3plains' sole obligation shall be to substitute alternative Third Party Materials.
16.2 3plains Site Manager. Subject to the representations and warranties of the Client in connection with the materials supplied by Client, 3plains represents and warrants that, to the best of 3plains' knowledge, the 3plains Site Manager do not knowingly infringe the rights of any third party, and use of same in connection with the Project will not knowingly violate the rights of any third parties except to the extent that such violations are caused by Client Content, or the modification of, or use of the Deliverables in combination with materials or equipment outside the scope of the applicable specifications, by Client or third parties.
16.3 Compliance with Laws. 3plains shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating to the transfer of software and technology.
16.4 Software Updates. From time to time, 3plains may update the software associated with a Service for many reasons, including but not limited to, (a) to fix bugs or problems in previous versions; and/or (b) to enhance functionality or features. 3plains makes no warranty that such updates will not affect your use of the Services or introduce new but unknown bugs into the software. Further, 3plains shall not be responsible for the effect an update has on any code not provided by 3plains and any modifications to such code to restore functionality shall be Client's sole responsibility and cost.
16.5 Security. Client acknowledges that the Internet is not a secure or completely reliable system, and that the purpose of the Services is to allow end users easy access to Client's Content. 3plains will take those precautions 3plains deems reasonable in its sole discretion to secure Client's Web Site from attack, but 3plains makes no warranty that there will be no outages or interruptions of service, or that Client's Content will be secure against attack of any form by end users or other third parties.
16.6 Termination. In order to terminate your right to access and use the Service, you must do at the 3plains website by entering the following URL: http://www.3plains.com/cancel-service/ and follow the instructions. For security reasons, 3plains requires that you authenticate any cancellation requests.
16.7 Electronic Mail. Client agrees 3plains is not an Electronic Mail provider and authorizes 3plains to use a Third-Party provider for Client's Electronic Mail.
16.8 Electronic Mail Support. 3plains will provide Client with an Electronic Mail environment. Client will otherwise be responsible for administering Electronic Mail service, including but not limited to adding mailboxes, managing settings and users, and configuring desktop and/or mobile software.
16.9 Web Hosting. Client agrees 3plains is not a Web Hosting provider and authorizes 3plains to use a Third-Party provider for Client's Web Hosting.
16.10 Web Hosting Availability. Client agrees 3plains has no control over availability of the Web Hosting on a continuous or uninterrupted basis. 3PLAINS MAKES NO WARRANTY THAT THE WEB HOSTING WILL BE UNINTERRUPTED, ERROR FREE, OR COMPLETELY SECURE.
16.11 Web Hosting Accessibility. Client agrees access to Web Hosting will be limited to the access provided via the 3plains Site Manager content management system.
16.12 Website Content. Client agrees that all provided content (i.e. photos, images, logos, etc.) to 3plains is the responsiblity of the client to provide. All content given to 3plains is to be assumed property of the client. 3plains holds no responsibility for copyrighted content that our clients have provided to us. If the client does not have the rights to the work, then the client should not be sending the files. 3plains may take content from clients previous website and 3plains is not responsible if the content or resources infringe on trademark or copywright law from the previous website. If another web company or 3rd party created the trademark or copyright infringement, 3plains is not responsible for using these resources on the clients new website created by 3plains. Client agrees to hold to indemnify, save and hold harmless 3plains from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party under this Agreement.
17. Search Engine Optimization-specific Terms and Conditions
17.1 Client Accounts. Client authorizes 3plains to access Client-owned accounts for the purpose of performing tasks as part of Search Engine Optimization Services. Accounts may include but are not limited to Google Analytics and/or Google Webmaster Tools. Client shall provide access information such as user names, and passwords as needed by 3plains.
17.2 Ghost Writing. Client authorizes 3plains to Ghost Write and publish articles on behalf of Client for use on Client's website and/or Third-Party websites, blogs, and forums.
17.3 Traffic and Ranking. Client agrees 3plains is not liable for any loss of website traffic or search engine position ranking. Further 3plains is not liable for any other changes or issues caused by other search engine optimization companies or by the Client or any third party. Client agrees to notify 3plains promptly if Client engages in any other SEO efforts or partners and/or hires another search engine optimization company during this contract term. 3plains does not guarantee any increase in traffic or sales.
17.4 Placement. 3PLAINS DOES NOT WARRANTY ANY EXACT PLACEMENT IN ANY SEARCH ENGINES.
18.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that 3plains' invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
18.2 Notices. All notices to be given hereunder shall be transmitted in writing either by electronic mail with return confirmation of receipt or via the private Client area located in Client's 3plains Site Manager. Notice shall be effective upon receipt or in the case of electronic mail, upon confirmation of receipt.
18.3 No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
18.4 Force Majeure. 3plains shall not be deemed in breach of this Agreement if 3plains is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of 3plains or any local, state, federal, national or international law, governmental order or regulation or any other event beyond 3plains' control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, 3plains shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
18.5 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of Minnesota without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys' fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of Minnesota. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that 3plains will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that 3plains shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
18.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
18.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
18.8 Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control.