TERMS OF SERVICE
By accepting these Terms of Service (“Terms of Service”), you (“Licensee”) are entering into the following agreement with Brands on Fire, LLC, a Washington Limited Liability Company (“Legwork”), the terms of which are effective as of November 7, 2017 (“Effective Date”).
WHEREAS, Legwork has developed practice management software for dentists, technology that syncs electronic data between dental practice management software and various programs, search engine optimization technology, and website design and management software, as well as provides assistance and other support in connection with its software, technology, and programs (the “Service”);
WHEREAS, Licensee desires to use the Service in connection with its dental practice;
NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual covenants, representations, warranties and provisions contained herein, the parties agree as follows:
Section 1. Usage of the Service.
1.1 Licensee accepts the Agreements. By selecting the “accept” option and downloading the service or by installing, using, or copying the service, Licensee agrees to all of the terms of this Terms of Service as well as all of the terms in the End User License Agreement (collectively, the “Agreements”). If Licensee does not agree to all of the terms of the Agreements, Licensee must select “Decline” and must not install, use, or copy the service.
1.2 Changes to the Service and terms. The features and functions of the Service, including the Terms of Service Agreement may change over time. All revised versions of the Service and terms shall supersede any and all prior versions. Revised Service and terms shall be effective as of the Effective Date indicated above. It is Licensee’s responsibility to ensure that any usage of the Service is compatible with the Service and the terms of the Terms of Service. Legwork will provide advanced notice of any material revisions in the Service or terms. Licensee’s continued access or use of the Service constitutes its acceptance of any revisions. If Licensee does not agree to any revisions, Licensee shall stop using the Service and Legwork is no longer obligated to provide Licensee with the Service.
Section 2. Service Provided.
2.1 Licensee’s Package. Legwork shall provide to Licensee the Service and features of the package selected by Licensee from Legwork’s Pricing Guide, available at http://legworkprm.com/pricing, which may be revised from time to time.
2.2 Website Work. Work by Legwork on Licensee’s website that is not encompassed in the package identified above (“Website Work”) will begin after fifty percent (50%) of the total website work price has been paid (the “Initial Payment”). Legwork will do everything within its means to complete all Website Work within sixty (60) days after the Initial Payment.
2.3 Project Work. All work that is not Website Work and is not included in Licensee’s package, including, but not limited to, graphic design, website edits, and postal mailers, shall be called “Project Work.” Legwork will not commence Project Work until Licensee has accepted the Agreements. Legwork will make reasonable efforts to complete all Project Work for Licensee within a reasonable time after the Licensee and Legwork agree to undertake and pay for Project Work.
Section 3. Fees.
3.1 Generally. Licensee agrees to pay all fees set forth in these Terms of Service. Except as otherwise detailed in this agreement, all fees are payable in U.S. dollars and are non-refundable. Legwork reserves the right to change prices with at least 90 days’ notice.
3.2 Service Fees. Licensee hereby agrees to pay to Legwork a monthly licensing fee. That licensing fee shall be equal to the amount listed for Licensee’s Service Package on Legwork’s Package Features and Pricing Page, available at http://legworkprm.com/pricing, which may be updated from time to time. Monthly licensing fees shall be incurred for the month that Licensee accepts the Agreements, and every month thereafter unless or until the Terms of Service are terminated.
3.3 Project Fees. Legwork and Licensee may, from time to time, agree to have Legwork complete Project Work. Licensee hereby agrees to pay Legwork reasonable fees for Project Work as evidenced by invoices submitted to Licensee by Legwork.
3.4 Fees payable. The fees due under these Terms of Service shall be payable to Legwork by the fifteenth (15th) day of any given month for the prior month’s service.
Section 4. Invoicing and Payment.
4.1 PRM Billing Policy. Billing for license to use Licensee’s selected package’s service and features commences no later than 30 days after Licensee accepts the Agreements. Billing may commence earlier if Licensee has received training from Legwork and its account is made live and active. Billing for usage based charges such as printed items, postage, or gifts will be billed at the end of each calendar month and charged to the credit or debit card on file.
4.2 Website Billing Policy. Billing for Website Work commences no later than 30 days after Licensee accepts the Agreements. Fifty Percent (50%) of the total Website Work price must be paid before Legwork will commence work on Licensee’s website. The full amount due for Website Work is due upon completion of all Website Work but in no event shall be due later than 120 days after Licensee accepts the Agreements.
4.3 Project Billing Policy. Fees for “project work,” including but not limited to graphic design, website edits, and postal mailers, will be due immediately upon project completion.
4.4 Overdue Payments. Licensee may dispute any fee or charge in good faith. However, if a payment is later determined to have been due, it shall be subject to interest in the amount of one and one half percent (1.5%) of the outstanding balance each month or the maximum rate permitted by law, whichever is less. The late charge shall accrue from the date the payment was due.
4.5 Suspension of Service. If Licensee’s account has charges which are 30 days or more overdue, Legwork reserves its right to suspend Licensee’s access to the Service until such amounts are paid in full. Licensee shall not be charged for suspended Services, but is liable for all accrued liabilities and obligations. A reactivation fee of $100.00 will be due if service is suspended due to non-payment and Legwork and Licensee agree to reactivate Licensee’s access.
4.6 Taxes. Fees and charges are exclusive of all local, state, federal, or foreign taxes, levies, or duties imposed by taxing authorities, all of which are Licensee’s responsibility (except for taxes based solely on Legwork’s income). If Legwork has the legal obligation to pay or collect any such tax, Legwork shall pay it unless Licensee provides a valid tax exemption certificate, Licensee shall reimburse Legwork for all payments.
4.7 Billing and Contact Information. Licensee shall provide Legwork with complete and accurate billing and contact information, including Licensee’s name, street address, email address, and the name and contact information for Licensee’s authorized billing contact. Licensee shall update all billing and contact information with Legwork within thirty (30) days of any change.
Section 5. Term and Termination. Each of the parties hereto has the right to terminate these Terms of Service, with or without cause, upon 30 days written notice to the other party. Legwork may also suspend Licensee’s use of the Service immediately upon notice for cause if there is reason to believe Licensee has violated any term of the Agreements. After termination Licensee shall pay Legwork any amounts due at the time of termination in accordance with the terms and conditions of the Agreements, including, but not limited to, any final usage fees.
Section 6. Limitation of Liability and Disclaimer of Warranties.
6.1 Indemnification. Licensee shall indemnify, defend and hold harmless Legwork from and against all claims, losses, costs, damages, and expenses (including reasonable attorney’s fees and costs) which result from or arise in connection with any act, negligence or omission of Licensee, including claims losses, costs, damages, and expenses arising out of violations of the Health Insurance Portability and Accountability Act.
This Section 6.1 shall survive termination of this Agreement.
6.2 Warranty Disclaimer. LEGWORK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. LEGWORK’S SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. LICENSEE EXPRESSLY AGREES THAT LICENSEE’S USE OF THE SERVICE IS AT LICENSEE’S SOLE RISK AND EXPENSE.
6.3 Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL LEGWORK BE LIABLE TO LICENSEE OR ITS PATIENTS FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF LEGWORK HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL LEGWORK BE LIABLE TO LICENSEE FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY LICENSEE DURING THE TWELVE MONTHS PRECEDING THE INCIDENT OR CLAIM.
Section 7. Miscellaneous.
7.1 Applicability and Entire Agreement. This Agreement, including all attachments hereto and thereto which are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, whether written or oral, regarding such subject matter. Any rights not expressly granted in this Agreement are reserved by Legwork, and all implied licenses are disclaimed. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement.
7.2 Counterparts. This Agreement may be executed in one or more real, facsimile or electronic counterparts, each of which shall be deemed one and the same instrument.
7.3 Amendments and Modifications. This Agreement may not be amended, supplemented or modified except by written agreement between Licensee and Legwork.
7.4 Compliance. Nothing contained in this Agreement will prevent either party from complying with current or future internet commerce or privacy laws.
7.5 Force Majeure. Neither party shall have any liability under this Agreement by reason of any failure or delay in the performance of its obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, internet outages, computer virus, Acts of God, war, terrorism, criminal activity, governmental action, or any other cause that is beyond its reasonable control.
7.6 Assignment. Neither this Agreement nor any part hereof may be assigned by Licensee without the prior written consent of Legwork. Any assignment, transfer or delegation of duties hereunder by Licensee without Legwork’s prior written consent shall be void and of no force and effect. Legwork will make reasonable efforts to accommodate a proposed assignment in the event of a merger, acquisition or other form of reorganization, only if the proposed assignee is financially and otherwise capable of discharging Licensee’s duties and obligations hereunder, including without limitation in accordance with applicable laws, but may nevertheless withhold its consent at its sole discretion. Either Legwork or any of its subsequent assignees may assign this Agreement, in whole or in part, including any applicable rights or delegation of duties to any party. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
7.7 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Washington, without regard or reference to its choice or conflict of laws provisions. Each party hereto agrees that all disputes regarding this Agreement and matters connected with its performance shall be subject to the exclusive jurisdiction of alternative dispute resolution forums or the courts of the State of Washington located in Chelan County, Washington.
7.8 Arbitration of Disputes. The parties agree to attempt to resolve any disputes relating to this Agreement by negotiation and/or with a mutually agreed-upon mediator. However, if these attempts are unsuccessful, upon demand by either party, all claims between the parties shall be referred for binding arbitration in accordance with the Washington Uniform Arbitration Act (RCW 7.04A et seq.). There shall be one arbitrator, whose decision shall be final, and binding, and judgment may be entered thereon. If the parties cannot agree on the arbitrator, the arbitrator shall be appointed by the presiding judge of the Chelan County Superior Court. The arbitrator is authorized to restrict and/or limit discovery in the arbitrator’s discretion, to that discovery reasonable under the circumstances considering the complexity of the matter and the amount in controversy. The substantially prevailing party, in any arbitration or other action, shall be entitled to collect all fees and costs incurred in connection with such action, including attorneys’ fees, which amount shall be included in any award given. The arbitration requirements of this section shall not be required for claims related to Legwork’s intellectual property (e.g. trademarks, trade dress, domain names, trade secrets, copyrights or patents).
7.9 Independent Contractors. The relationship of the parties hereto is and at all times shall remain one of independent contractors. Neither party is in any way a partner, joint venturer, affiliate, agent or representative of the other for any purpose whatsoever, nor has the legal right or authority to make any representation, warranty, promise, guaranty or agreement in the name of or for the account of the other under this Agreement, except as otherwise expressly authorized under this Agreement.
7.10 Notices. Legwork may notify Licensee by a general notice on the Service, by electronic mail to any e-mail address it has on record or by pre-paid first class mail or overnight courier to Legwork’s address in Legwork’s records. Notice shall be deemed to have been given within 3 business days after mailing or 12 hours after sending an email or posting a change on the Service. Licensee shall notify Legwork (and such notice shall be deemed given when received) of any matter regarding this Agreement only by a written letter (a) sent by confirmed facsimile, (b) delivered by prepaid nationally recognized overnight delivery courier or by first class, or (c) by e-mail to info@LegworkPRM.com.
7.11 Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party to be bound thereby.
7.12 Severability. If any provision of this Agreement is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of this Agreement, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the parties to this Agreement and has like economic effect.
7.13 Attorney’s Fees. If any action in law or in equity is necessary to enforce this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees and costs and expenses in addition to any other relief to which such party may be entitled.