We reserve the right at any time to:
2. Change the site services, including eliminating or discontinuing any content or feature of the site services; or
3. Change fees, charges or other conditions for use of our services.
Creative Motion Design is a S-Corporation based in North Carolina, USA. All legal issues arising from or related to the use of this service shall be construed in accordance with the laws of the State of North Carolina without regard to the conflicts of law provisions therein. As we maintain servers in both the United States and the Czech Republic, you understand and agree that we store and process your information on computers located in the United States and the Czech Republic, and that by providing any information to Creative Motion Design, you consent to the transfer of such information to the United States and the Czech Republic.
This Agreement ("Agreement") is effective as of the date at which the Client initiates a purchase order or invoice for services to be provided by Creative Motion Design (collectively the "Parties").
In Consideration of the mutual covenants herein, Client and Creative Motion Design hereby agree as follows:
1. Services and Template
a. Template and Client. Creative Motion Design has / will provide Client with a website template in accordance with a purchase order or other documents setting forth the design, style, and name of the Creative Motion Design template. Creative Motion Design grants Client a limited, non-exclusive, non-transferable license to use the Template for the sole purpose of marketing and providing information on the World Wide Web regarding Client's business. The Creative Motion Design back-end database will allow Client to log in to the Client's website template with a password and upload, edit, and delete images in specified galleries. Client shall not change or modify their Template in any manner except changes for which the Template is designed. Client may access data on the Creative Motion Design servers contained in their account only. With the exception of read-only access to log files, neither Client, nor any users, shall have the authority to access, read, or write data to any other location or account on the Creative Motion Design servers. Client may not use the Template for any other purpose other than for their sole use. >
b. Clients may not upload third party programs or software to Creative Motion Design's servers with out the express permission of Creative Motion Design. All programs or software not covered in the terms of this agreement will be deleted from Creative Motion Design's servers at Creative Motion Design's discretion.
c. Ownership. U.S. copyright laws and international copyright treaties protect the Templates and Creative Motion Design Databases. The Database is Confidential Information as hereinafter set forth are proprietary to Creative Motion Design, and title shall remain in Creative Motion Design. All applicable common law and statutory rights to the aforesaid including, but not limited to, rights in confidential and trade secret material, source code, object code, menus, structure and sequence, screen shots, trademarks, service marks, patents, and copyrights, shall be and will remain the property of Creative Motion Design. Client shall have no right, title, or interest in such proprietary rights except as set forth herein.
THE TEMPLATES CONTAIN CONFIDENTIAL AND TRADE SECRET MATERIAL AND THE KNOW-HOW OF Creative Motion Design, WHICH IS NOT READILY SUSCEPTIBLE TO REVERSE ENGINEERING, REVERSE DE COMPILING, OR DISASSEMBLING AND MAY CONTAIN PRINTED OR VISUALLY-PERCEPTIBLE MATERIALS DESCRIBING THE USE OR DESIGN OF WHICH IS PROPRIETARY TO CREATIVE MOTION DESIGN.
d. Passwords. Client will be provided with a password to access to the Template database which may be used by Client or any person authorized by Client with a need to know. Creative Motion Design shall not be responsible for any damage or loss of Client resulting from un-authorized access to or use of the Template or Database.
e. Unsolicited Email. Client shall not send unsolicited bulk email via Creative Motion Design's servers and the website of Client shall not reference or be linked to any unsolicited email.
f. Template Modification. Any unauthorized modification of the Template shall be a material breach of this Agreement.
g. Restrictions. Except as specified in this Agreement, Client is prohibited from:
(i) Distributing, transferring possession, integrating into other programs or software, copying, lending, renting, leasing, transmitting or otherwise making copies of or use of the Template or the Database to any third party;
(ii) Modifying, adapting, or creating Derivative Works of the Template or the Database.
(iii) Disabling any password or other protective device incorporated into the Template.
(iv) Attempting in any way to obliterate or destroy the copyright notices, trademarks, service marks of Creative Motion Design in or on the Template.
(v) Using the Template or Database in any way past the expiration of the Term.
(vi) Making use of the Creative Motion Design Animations in any way not specifically allowed by this Agreement.
h. Prevent Reverse Engineering. Client will use its best efforts to prevent reverse engineering, decompilation and disassembly of the Template and Database by advising Authorized Users and employees of Client of the all restrictions in this agreement, by immediately reporting a violation of the same to Creative Motion Design, and by halting any reverse engineering, decompilation and disassembly of the Creative Motion Design Animations of which Client has actual knowledge and control.
i. Hosting. Creative Motion Design shall provide Client with website hosting services for use of the Template consistent with the quality standard in the industry.
The term of this Agreement is set forth in the invoice submitted to Client and shall renew for a like term once the yearly fee has been paid. Should the client not pay for hosting services with in 30 days of their due date, their website may be deleted at Creative Motion Design's discretion.
3. Service Terms and Obligations
a. Availability of Services. Subject to the terms and conditions of this Agreement, Creative Motion Design shall use its best efforts to provide the Services on a hardware system providing storage, connectivity, and data access (the "System"). The Services and the System may, from time to time be inaccessible or inoperable for various reasons, including
(i) Equipment malfunctions;
(ii) Periodic maintenance procedures or repairs which Creative Motion Design may undertake; or
(iii) Causes beyond the control of Creative Motion Design or which are not reasonably foreseeable by Creative Motion Design, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively "Downtime"). Creative Motion Design shall provide notice of any scheduled Downtime and will use its best efforts to perform necessary periodic maintenance at reasonable times giving consideration to the needs of all Parties. In the event of any Downtime, Client shall not be entitled to a reduction of any payments due and payable to Creative Motion Design for such period.
b. Storage and Security. In order to ensure the security, confidentiality, and integrity of the System and information transmitted through or stored on the System Creative Motion Design shall provide firewall protection providing reasonable protection from network attack and other malicious harmful or disabling data, work, code or program consistent with the standard in the industry.
4. Payment Terms
a. Payment. Client shall pay Creative Motion Design on an annual basis for the Services in accordance with the purchase order or similar oral or written documentation initiating the Service:
b. Due Date. All payments shall be due and payable within thirty (30) calendar days of the date of the invoice. Creative Motion Design will not refund any new client after 30 days if they delay the construction of their site.
c. Disputed Amounts. In the event Client disputes any amount charged, Client shall pay all sum due under the invoice within said time that are not in dispute and the amount in dispute will not be due and payable until the Parties resolve the dispute.
d. Suspension of Service. THE FAILURE TO MAKE ANY PAYMENT ON OR BEFORE THE DATE DUE SHALL BE A MATERIAL BREACH OF THIS AGREEMENT. If the billing amount is not paid when due, the Services may be terminated without notice in Creative Motion Design's sole discretion.
e. Taxes. Client shall be solely responsible for any taxes, duties or levies including but not limited to sales tax, use tax, or personal property taxes. Client shall indemnify and hold Creative Motion Design harmless from any liability arising there from.
a. Creative Motion Design Warranty Limitation. EXCEPT AS PROVIDED IN ABOVE, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RESPECTING THIS AGREEMENT OR THE SERVICES. UNDER NO CIRCUMSTANCES WILL CREATIVE MOTION DESIGN, BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES OR LOSSES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLIENT'S CLAIMS (INCLUDING CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY, COMPUTERS OR INTERRUPTION IN THE USE OR AVAILABILITY OF DATA, STOPPAGE OF WORK OR OTHER IMPAIRMENT OF ASSETS) ARISING OUT OF BREACH OR FAILURE OF WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. IN NO EVENT WILL CREATIVE MOTION DESIGN'S AGGREGATE LIABILITY EXCEED THE FEE THAT CLIENT ACTUALLY PAID, OR WAS REQUIRED TO PAY UNDER THE TERMS OF THIS AGREEMENT, TO CREATIVE MOTION DESIGN FOR THE SERVICE.
b. Client Warranty. Client represents and warrants to Creative Motion Design that Client use of the system shall not contain any content, materials, data, or reference that actually or potentially violates any applicable law or regulation, including but not limited to copyright and trademark laws and regulations, or infringes on any personal right, including but not limited to the right of privacy, or violates and Spam or virus laws;
Client shall indemnify, hold harmless and defend Creative Motion Design and its directors, officers, employees and agents from and against any action, claim, demand, dispute, or liability, including reasonable attorney's fees and costs, arising from or relating to any breach or potential breach of the terms of this Agreement including but not limited to a breach of the warranties set forth above.
In the event of default by Client, Creative Motion Design shall have the option, without further notice to Client or further demand for performance, to:
a. Website Posting. Post on Client's website that the account has been deactivated due to a breach of agreement including, but not limited to, non payment.
b. Removal. Remove Client's website from the server.
c. Individual Obligation. Make demand and/or institute suit against Client to collect each monthly or other obligation or other sum as it becomes due or enforce any other obligations under this Agreement; and/or
d. Injunction. In addition to any remedies at law or in equity, Creative Motion Design shall have a right to injunctive relief to enjoin any violation of the terms of this agreement; and/or
e. Terminate. Terminate this Agreement and make claim or sue Client for damages for breach of the past and/or future obligations of Client under this Agreement.
f. The enumeration of the foregoing remedies does not exclude any other remedy set forth herein or expressed or implied in law. All remedies are cumulative and shall be in addition to every other remedy now or hereafter existing by contract or at law or in equity.
8. Non-Solicitation, Hiring Of Employees Client shall not recruit, solicit or hire employees or independent contractors of Creative Motion Design who are currently employed or under contract or employed or under contract during the period of this Agreement unless written permission is obtained from Creative Motion Design. This provision shall remain in effect during the term of the Services and for a period of Two (2) years after termination of this Agreement. In the event of a violation of the terms herein, the Parties agree that damages will be difficult to ascertain but nevertheless real and substantial and as a result thereof agree to liquidated damages (in addition to an actual damages that Creative Motion Design can prove) equal to twice the average annual salary of the Creative Motion Design employee hired by Client. The Parties agree that said liquidated damages are fair and reasonable under these circumstances. In additional thereto, the Parties agree that the solicitation or hiring of a Creative Motion Design employee or independent contractor will cause immediate and irreparable injury to Creative Motion Design and as a result thereof, Creative Motion Design shall be entitled to injunctive relief.
9. Attorney's Fees In the event of any dispute under this Agreement, the prevailing party shall be entitled to an award of reasonable attorney's fees and shall pay the non-defaulting party its attorney's fees and costs, whether or not suit is actually filed.
a. Definition. "Confidential Information" shall mean any information of Creative Motion Design disclosed, or available, to Client orally or in writing or in model form, in whatever format, in connection with this Agreement, relative to the Services or the operations of Creative Motion Design, including, but not limited to, the Creative Motion Design Database, and the methods and techniques of Creative Motion Design providing the Services, whether disclosed by way of documents, oral communications, or use of the System, and all technical information regarding the operations of Creative Motion Design
b. Confidential Information. Creative Motion Design does not wish to receive any confidential information of Client and Client shall not provide or make available to Creative Motion Design any confidential information without the express written approval of Creative Motion Design.
c. Disclosure or Use. Client will not disclose, or in any way use the Confidential Information of Creative Motion Design accept in the use of the Services and System in accordance with this Agreement during the Term. If Client learns of an actual or potential unauthorized use or disclosure of Creative Motion Design's Confidential Information, Client will promptly notify Creative Motion Design and, at Creative Motion Design's request, shall provide Creative Motion Design with reasonable assistance to recover the Confidential Information.
11. Dispute Resolution
a. Mandatory Arbitration. Subject to the rights to injunctive or equitable judicial relief set forth herein any controversy or claim arising out of or relating to this Agreement or the existence, validity, breach or termination thereof, whether during or after its term, not resolved as aforesaid, will be finally settled by mandatory arbitration, subject to appellate rights, in accordance the Arbitration Rules of JAMS. Each party gives up any rights it might possess to have those matters litigated in a court or jury trial. The Parties shall share all costs of arbitration equally.
b. Legal Actions/Injunction. Nothing in this Agreement will prevent Creative Motion Design from seeking interim injunctive relief or other equitable relief in any court having jurisdiction to prevent the further violation of this Agreement by Client. To the contrary, the Parties agree that certain acts, including but not limited to copyright infringement, will result in immediate and irreparable injury to Creative Motion Design entitling the to Creative Motion Design to seek a restraining order, injunction, or equitable relief in North Carolina or a Federal Court, or any other court of competent jurisdiction without the necessity of arbitration or if arbitration is pending, judicial relief shall be in addition to arbitration.
c. Copyright Violation. Notwithstanding the aforesaid, any claims of copyright infringement or violation may be brought in the Federal District Court of North Carolina or any other court of competent jurisdiction.
a. Assignment. Creative Motion Design may assign any of its rights, duties or obligations under this Agreement in its sole discretion. Client may not assign or otherwise transfer this Agreement or any of its rights or obligations without prior written approval. Any attempt to do so without the approval of Creative Motion Design will be void.
b. Successors. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of all Parties if there is a permitted assignment.
c. Waiver. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
d. Severability. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
e. Amendment. No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by both Parties, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding, arbitration, or litigation between the Parties hereto arising out of or affecting this Agreement, or the rights or obligations of the Parties hereunder, unless such waiver or modification is in writing and duly executed by both Parties.
f. Law, Venue and Jurisdiction. This Agreement shall be governed in all respects by the laws of the State of North Carolina without regard to its conflict of laws provisions. North Carolina shall be the exclusive state with jurisdiction over any dispute arising out of this or related agreements. Venue in any action brought with respect to any provision of this Agreement or related agreements shall be in Mecklenburg, North Carolina and Client specifically consents to the jurisdictions of any state or federal court sitting in of the aforementioned counties.
g. Survival. The definitions herein and the respective rights and obligations of the Parties that generally continue following termination shall survive any termination or expiration hereof.
h. Force Majeure. Creative Motion Design shall not be liable for any delay in performance due to force majeure, including strikes, accidents, the unavailability of labor, Divine acts, or other delays beyond the control of Creative Motion Design. If timely completion of any duty is prevented by any cause of force majeure, or any act of Client, then such failure or delay shall not constitute default.
i. Entire Agreement. This Agreement and purchase orders and invoices constitute the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.
j. No Reliance. Client stipulates that Creative Motion Design has not made any representation with respect to the subject matter of this Agreement except such representations as are specifically set forth herein and has relied on its own judgment in entering into this Agreement.
k. Interpretation. The terms that are defined in this Agreement may be used in the singular or the plural, and references in the masculine shall include the feminine as the context requires. Headings are intended only for reference purposes.