Terms and Conditions of Service
By using this website and/or accepting a proposal for work-for-hire, you agree to the following terms and conditions of service and that all statements contained herein are true and complete. The following terms of service shall be incorporated into any agreement (an “Agreement”) entered into between you and Prairie Marketing, Inc. (“Prairie Marketing”) relating to Prairie Marketing’s development of your website, including any continuing content management services or maintenance.
1. Representations, Warranties and Covenants. You represent, warrant and covenant to Prairie Marketing the following:
1.1 Authority. You have the full power, capacity and corporate authority to enter into and perform any Agreement, each Agreement will be duly authorized by all necessary corporate action and will constitute the binding obligation of you, enforceable in accordance with the terms of any such Agreement (except as such enforceability may be limited by bankruptcy laws or other laws affecting the rights of creditors generally), and your performance of any Agreement will not violate or conflict with any other agreement to which you are a party.
1.2 Litigation. There is no pending or, to your knowledge, threatened litigation that would have an adverse impact on your performance under this Agreement.
1.3 Compliance with Laws. You shall comply with the terms of all applicable laws and regulations, including, without limitation, all applicable federal and state privacy laws, rules and regulations.
2. Limitation of Liability. Prairie Marketing’s aggregate liability arising out of or related to any Agreement shall be limited to the aggregate fees actually received by Prairie Marketing under such Agreement and in no event shall Prairie Marketing be liable for any consequential or punitive damages, including lost profits and the like. Prairie Marketing shall not be liable for any use or misuse of any website, or contents therein, by you or any other person. You hereby agree and acknowledge that Prairie Marketing shall not be liable for (i) any use of any website by you or any other person if the issue related to such use arose out of a circumstance over which Prairie Marketing has no control, including, but not limited to, issues arising from internet service providers, hosting service providers, incorrect information provided by you or any improper usage or (ii) failure to incorporate information provided by you into any website in a timely fashion. Prairie Marketing has no obligation to incorporate any information provided by you into any website other than as provided in an Agreement or as otherwise agreed to in writing by you and Prairie Marketing.
3. Disclaimers. Except as expressly set forth herein or in any Agreement, Prairie Marketing makes no representation or warranty of any kind, express or implied, regarding any matter whatsoever. Any implied warranties, including without limitation warranties of merchantability, fitness for a particular purpose, title, and non-infringement, are hereby expressly excluded. The website requires a working connection to the internet to function and must be obtained by you or any other third party as it will not be provided by Prairie Marketing.
4. Confidentiality. Neither you nor Prairie Marketing shall, directly or indirectly, disclose or make any use for your or its, as applicable, own benefit or for the benefit of any person, firm, corporation or entity, any proprietary information involving the business of the other (“Confidential Information”). Each of your and Prairie Marketing’s Confidential Information is and shall remain the sole and exclusive property of you or Prairie Marketing, as applicable.
5. Indemnification. You and Prairie Marketing (each an “Indemnifying Party”) shall indemnify and hold harmless the other and yours or its, as applicable, respective directors, officers, employees, agents, successors and assigns (collectively, the “Indemnified Parties”) from and against any and all claims, losses, liabilities, damages, judgments, settlements, costs or expenses, including, without limitation, reasonable attorneys’ fees and court costs, incurred by an Indemnified Party arising from a third party claim as a result of (a) a material breach or alleged breach of any Indemnifying Party’s representations, warranties, covenants or obligations set forth herein;
(b) any negligent act or omission or willful misconduct of an Indemnifying Party in the performance of any of its obligations hereunder or (c) an Indemnifying Party’s failure to comply with any applicable federal, state or local law.
6. Relationship of Parties. Nothing contained herein or in any other agreement between you and Prairie Marketing shall in any way constitute any association, partnership, or joint venture between you and Prairie Marketing, or be construed to evidence the intention of you and Prairie Marketing to establish any such relationship. Neither you nor Prairie Marketing shall have the right, power or authority to make any representation or warranty, or to assume or create any obligation, whether express or implied, on behalf of the other, or to bind the other in any manner whatsoever.
7. Notices. Any notices or other communications required or desired to be given under any Agreement must be in writing and will be deemed to have been given and received (i) if sent to the email address shown on the signature page of such Agreement without any return email indicating such email was not received or (ii) one day after being sent by a nationally recognized overnight courier with guaranteed next day delivery to the address shown on the signature page of such Agreement.
8. Governing Law and Venue. Each Agreement will be governed by Illinois law without regards to its conflicts of law provisions. You and Prairie Marketing hereto irrevocably agree that all actions or proceedings in any way, manner, or respect, arising out of or from or related to any Agreement shall be litigated only in courts having situs within Chicago, Illinois. You and Prairie Marketing hereby consent and submit to the exclusive jurisdiction of any local, state or federal court located within Chicago, Illinois and waives any right you or Prairie Marketing, as applicable, may have to transfer the venue of any such litigation.
9. Severability. If any provision of any Agreement shall be invalidated or refused enforcement by any court of competent jurisdiction, the provisions not invalidated or refused enforcement shall remain in full force and effect.
10. Attorneys’ Fees. If you or Prairie Marketing commences or is a party to any action or proceeding against the other which involves any breach or claimed breach of any Agreement or seeks a judicial declaration of rights hereunder, and such party is a prevailing party in such action, then such party will be entitled to reimbursement from the other party of all of such party’s expenses relating to such action or proceeding, including, without limitation, reasonable attorneys’ fees and costs. Without limiting the foregoing, a party will be deemed a prevailing party if such party obtains any judgment in its favor, including, without limitation, any form of injunctive relief.
11. Counterparts. Any Agreement may be executed in multiple counterparts and by facsimile or electronic (.pdf or .tif) signature, each of which shall be considered an original and all of which, when taken together, shall be considered a single agreement.
12. Further Assurances. You and Prairie Marketing shall execute and deliver all such other instruments and take all such other actions as may reasonably be requested from time to time in order to effectuate the purposes of any Agreement.
13. Assignment; Binding Effect. Neither you nor Prairie Marketing may assign or transfer any Agreement in whole or in part, by operation of law or otherwise, without the prior written consent of the other, except that either (the “Assigning Party”) may assign or transfer an Agreement, by operation of law or otherwise, without the written consent of the other (the “Non-Assigning Party”) to a corporation or other business entity succeeding to all or substantially all the assets and business of the Assigning Party to which such Agreement relates by merger or purchase, provided that such corporation or other business entity expressly assumes, all of the terms and conditions of such Agreement. Any attempted assignment, delegation or transfer inviolation hereof shall be null and void. Subject to the foregoing, each Agreement shall be binding on you and Prairie Marketing and each of your and its successors and assigns.