All users of this site agree that access to and use of this site are subject to the following terms and conditions and other applicable law. If you do not agree to these terms and conditions, please do not use this site or its services.
The entire content included in this site, including but not limited to text, graphics or code is copyrighted as a collective work under the United States and other copyright laws, and is the property of 1Digital® Agency. The collective work includes works that are licensed to 1Digital® Agency. Copyright 2012, 1Digital Agency ALL RIGHTS RESERVED. Permission is granted to electronically copy and print hard copy portions of this site for the sole purpose of placing an order with 1Digital® Agency or purchasing 1Digital® Agency products. You may display and, subject to any expressly stated restrictions or limitations relating to specific material, download or print portions of the material from the different areas of the site solely for your own non-commercial use, or to place an order with 1Digital® Agency or to purchase 1Digital® Agency products. Any other use, including but not limited to the reproduction, distribution, display or transmission of the content of this site is strictly prohibited unless authorized by 1Digital® Agency. You further agree not to change or delete any proprietary notices from materials downloaded from the site.
Limitation of Liability
1Digital® Agency shall not be liable for any special, compensatory, consequential and/or punitive damages that result from the use of, or the inability to use, the materials on this site or the performance of the products or services, even if 1Digital Agency has been advised of the possibility of such damages.
These terms and conditions are applicable to you upon your accessing the site and/or completing the registration or shopping process. These terms and conditions are also applicable to any breach, alleged breach, or any problems encountered while retaining and using the service of 1Digital® Agency. These terms and conditions, or any part of them, may be terminated by 1Digital® Agency without notice at any time, for any reason. The provisions relating to Copyrights, Trademark, Disclaimer, Limitation of Liability, Indemnification and Miscellaneous, shall survive any termination.
1Digital® Agency may deliver notice to you by means of e-mail, a general notice on the site, or by other reliable methods to the address you have provided to 1Digital® Agency.
Your use of this site shall be governed in all respects by the laws of the state of Pennsylvania, U.S.A. You agree that jurisdiction over and venue in any legal proceeding directly or indirectly arising out of or relating to this site and it’s service provided (including but not limited to the purchase of 1Digital® Agency products) shall be in the state or federal courts located in Philadelphia County, Pennsylvania. Any cause of action or claim you may have with respect to the site (including but not limited to the purchase of 1Digital® Agency products) must be commenced within one (1) year after the claim or cause of action arises. 1Digital® Agency’s failure to insist upon or enforce strict performance of any provision of these terms and conditions shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any of these terms and conditions. 1Digital® Agency may assign its rights and duties under this Agreement to any party at any time without notice to you.
Use of Site
Harassment in any manner or form on the site, including via e-mail, chat, or by use of obscene or abusive language, is strictly forbidden. Impersonation of others, including a 1Digital Agency or other licensed employee, host, or representative, as well as other members or visitors on the site is prohibited. You may not upload to, distribute, or otherwise publish through the site any content which is libelous, defamatory, obscene, threatening, invasive of privacy or publicity rights, abusive, illegal, or otherwise objectionable which may constitute or encourage a criminal offense, violate the rights of any party or which may otherwise give rise to liability or violate any law. You may not upload commercial content on the site or use the site to solicit others to join or become members of any other commercial online service or other organization.
1Digital Agency does not and cannot review all communications and materials posted to or created by users accessing the site, and is not in any manner responsible for the content of these communications and materials. You acknowledge that by providing you with the ability to view and distribute user-generated content on the site, 1Digital® Agency is merely acting as a passive conduit for such distribution and is not undertaking any obligation or liability relating to any contents or activities on the site. However, 1Digital® Agency reserves the right to block or remove communications or materials that it determines to be (a) abusive, defamatory, or obscene, (b) fraudulent, deceptive, or misleading, (c) in violation of a copyright, trademark or; other intellectual property rights of another or (d) offensive or otherwise unacceptable to 1Digital® Agency in its sole discretion.
You agree to indemnify, defend, and hold harmless 1Digital® Agency, its officers, directors, employees, agents, licensors and suppliers (collectively the “Service Providers”) from and against all losses, suits, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation of these terms and conditions or any activity related to your account (including negligent or wrongful conduct) by you or any other person accessing the site using your Internet account.
Upon the full execution of any 1Digital® Agency agreement or proposal, all parties promise and agree that they will not defame or disparage each other, any other party, employee or individual during or after completion or termination of any project. This includes any negative reviews, comments, negative social media posts, Yelp reviews, Google reviews or any other private agency or company. Should either party breach this paragraph, the non-breaching party will be entitled to damages and attorneys fees for any suit for enforcement.
In an attempt to provide increased value to our visitors, 1Digital® Agency may link to sites operated by third parties. However, even if the third party is affiliated with 1Digital® Agency, 1Digital® Agency has no control over these linked sites, all of which have separate privacy and data collection practices, independent of 1Digital® Agency. These linked sites are only for your convenience and therefore you access them at your own risk. Nonetheless, 1Digital® Agency seeks to protect the integrity of its web site and the links placed upon it and therefore requests any feedback on not only its own site but for sites, it links to as well (including if a specific link does not work).
TERMS OF AGREEMENT between 1Digital® Agency and Client.
Description of the Services.1Digital® Agency will design, develop or market a website or function request (the “Project”) for the Client by providing the design, programming services or marketing/SEO listed on Proposal Agreement / SEO Agreement / Digital Marketing Agreement, etc (the “Services”) in a professional and timely manner.
Term / Scheduling
1Digital Agency will begin the Services on the designated date and continue until the satisfactory completion of the Services within the scope of work found in the proposal agreement. The term “satisfactory completion” of the Services means when the software, design or project developed for the Website performs to the specifications set forth on Proposal Agreement.
Fees to 1Digital® Agency are due and payable as scheduled in the proposal agreement via milestones. Any additional expenses incurred during development will be invoiced at the completion of the Web site. 1Digital® Agency reserves the right to remove web pages from viewing on the Internet until final payment is made. If a payment delay is anticipated, please contact 1Digital® Agency immediately for an alternative arrangement. Payments made are nonrefundable. Please review our refund and cancellation page for more information. If there is any dispute or concern over future payment 1Digital has the right to change the payment terms. If a dispute arises, 1Digital® has the right to limit and request for final payments via check, bank check or wire transfer. Any payment made by client signifies the acceptance of the proposal and terms of this agreement. In case of collection proves necessary, the Client agrees to pay all fees incurred by that process. Regardless of the place of signing of this Agreement, the Client agrees that for purposes of venue, this Agreement was entered into in Philadelphia County, Pennsylvania, and any dispute will be litigated or arbitrated in Philadelphia County, Pennsylvania.
The above-named Client is engaging 1Digital Agency, for the specific purpose of developing and/or improving a World Wide Web site. If the above-named Client wishes to have 1Digital Agency host the Client’s web space on 1Digital® Agency’s web server, permission to do such is granted. If the Client prefers to have the site hosted elsewhere, Client hereby authorizes 1Digital® Agency to access this FTP account, and authorizes the Internet Service Provider to provide 1Digital® Agency with “write permission” for the Client’s web page directory, cgi-bin directory, and any other directories or programs which need to be accessed for this project. The Client also authorizes 1Digital® Agency to publicize their completed Web site to major Web search engines, as well as other Web directories and indexes if this is included in the scope of the project.
Client agrees to reimburse 1Digital® Agency for any outside expenses necessary for the completion of the project. These expenses are all Internet fees and are not a source of income for 1Digital® Agency. Examples of these external charges would be: securing a domain name; purchase of specific photography at the Client’s request; purchase of specific software at the Client’s request, hosting, plugins.
Client Amendments / Changes / Revisions
We encourage input from the Client during the design process. 1Digital® Agency understands, however, that clients may request design changes to pages that have already been built or designed to the Client’s specification. To that end, please note that our agreement does not include a provision for revisions outside of our proposal agreement revision policy. On custom web design projects, if page modification is requested after a page has been designed or built to the Client’s specification, we must bill for the additional time and work. Anything that may be considered outside of scope by 1Digital Agency that was not initially planned for or worked on through 1Digital® Agency design process is considered out of scope. Out of scope items will also delay the proposed timeline. 1Digital will provide an estimate of added time for each change order, but please be aware that 1 day of client delay is equal to 3 days of agency delay, as a rule of thumb. Once the design and mockup phase is complete and development has started, 1Digital Agency considers that phase complete and no alterations will be made without additional costs and timing impact to the project. Additional modifications will be billed for at $150 per hour or per the rate in the proposal agreement and or per the complexity of the task which is at 1Digital® Agency’s discretion.
Once we have completed the revision process in the design phase and have started the development phase, we can’t go back and revise mockups or make any changes without impacting cost and timing of the project. Once the development phase starts we consider the mockup and design phase complete. We’ll either get your signoff by email to start development or if you do not respond within 1 week of mockup delivery, we consider the design and mockup phase complete and we’ll automatically start development. If you anticipate delays in response please advise your account manager in writing to avoid additional costs or time delays in your project.
During the design phase of your project, revisions are offered per the proposal agreement. Client adheres to the revision policy set within the proposal for all projects that 1Digital Agency performs or engages in.
3rd Party Servers & Hosting
1Digital Agency is not a hosting or server provider. During development projects if 3rd party hosting is necessary, the client must provide 1Digital Agency with full admin access of the 3rd party cpanel for configuration of their development project. If issues arise on the clients hosting environment, the client is responsible to handle the issues with their internal or 3rd party hosting support team.
Data migration/data import
Any data being migrated or imported into any system by 1Digital Agency must be provided, by the client, in a file format that is both compatible with the receiving system and approved by 1Digital Agency, unless explicitly stated otherwise in the scope of work herein.
1Digital Agency can only import or migrate complete and organized data. For example, an empty category field in a product/inventory spreadsheet/CSV prevents that product from being found via the main navigation and instead requires use of the search bar to locate. It is the responsibility of the client to provide complete, organized, and properly formatted data.
1Digital Agency does not guaranty any performance, sales or conversion increases. 1Digital Agency does it’s best to help clients in their design, development and marketing goals, but we do not guaranty any increased results. All service under this Agreement is provided “AS IS” and without warranties. 1Digital Agency performs work per our agreements (Scope of work) and we cannot and does not guaranty performance, increase in revenues, increase in engagement or conversion. And 1Digital Agency makes no promises towards any of these types of claims. At times when a website is redesigned or migrated from one platform to another, there can be a dip in traffic and analytics. 1Digital Agency is not responsible for such dips in activity as there can be many reasons for this to occur outside of 1Digital Agency control. 1Digital Agency will only roll back a clients website to the clients’ original site if paid to do so and if there is a backup of the original site that should be stated within the original agreement (Scope of work). If a backup exists, 1Digital Agency is not responsible for the updates made during the time from the last backup.
3rd parties & data reformatting
It is also the responsibility of the client to communicate with any vendors or 3rd parties to properly format and relay (to 1Digital Agency) any data that the client is not the primary source of. Unless already discussed and included in the scope of work, any data manipulation, reformatting, field mapping, entry, or sourcing is considered outside of the scope and requires a change order and additional cost to the client.
SEO & Marketing
We do our best to achieve SEO results with a well-balanced campaign however keyword ranking and performance is not guaranteed. 1Digital does not offer any refunds for SEO or digital marketing campaigns (SEO, PPC, Shopping Feeds, Email Marketing, Re-marketing, Content Marketing, Blogging, Social Media).
As data migration can be very complex and time-consuming, it is not always possible to account for every step of the process when determining a quote and scope of work. Sometimes there are issues that cannot be discovered until well into the migration process. For example, if the migration requires use of a 3rd party application or vendor, 1Digital Agency is not responsible for any bugs, delays, issues or noncooperation from said 3rd parties. Alternatively, a scope of work might include adding images to products by downloading images from an FTP file and using the image names to connect them with their associated product data. If the image names are later found to match only 50% of the product IDs, it is not the responsibility of 1Digital agency to perform out of scope activities to adjust 50% of the image names (or otherwise fix the issue).
As such, it is not the responsibility of 1Digital Agency to foresee all possible issues that stem from the client’s assets or 3rd party systems. Extra work that is required to fix such unforeseen issues may require a change order and additional cost to the client.
We support the code and development we create for up to 30 days for any mistakes or errors found after the completion of your project as long as this code has not been tampered with by you or any other developers and coders. Any errors or issues found after 30 days that needs resolution will be performed by our team at an hourly service agreement that may be purchased by contacting our sales department. Please review our general company design, development and project terms. If for any reason another developer, designer or 3rd party source outside of 1Digital® Agency changes or alters code or design created by 1Digital® Agency (without permission) during the 30 days, our support agreement becomes void. All errors and bugs must be submitted to 1Digital Agency before we launch the site to avoid issues after launch. After delivering the website to you or launching, only minor bugs & issues will be handled. Any major bugs & issues must be worked on while on our development sandbox otherwise later there can be additional charges for rework or complex bug fixes.
If free or included support is part of your project agreement, support of any QA issues starts from the day we deliver or migrate the site to your account from our sandboxes or test environment. This happens after we receive final payment and the project has no outstanding payments due. The support period starts whether or not your website goes live or not. During this time any small bugs or QA issues are handled by 1Digital Agency within a 12 to 24 hour period depending on the complexity of the bug or issue. Any rework or revisions from the original mockup or development version of the website will be charged at additional rates for the time spent. After the support period, any reported bugs or issues are charged at the agreed upon hourly rate within your original contract. 1Digital® Agency’s rate can change depending on the complexity of fixes, or any internal rate changes. 1Digital® Agency has the right to decline to offer support if clients work or tamper with any code during the support period. Any 3rd party work done outside of 1Digital Agency will void our support obligation. 1Digital® Agency does not train clients on platform use unless specifically noted in the scope of work. Any support must be addressed with the platform themselves. For any support, 1Digital® Agency must be granted full admin access and permissions. During the support period, all requests must be made via email. Support is for technical bugs/issues only and not for platform explanations, training, hosting support or security support. Only valid support requests will be honored. This support does not include instruction on how to use your e-commerce shopping cart software or how to manipulate the code we have implemented. Education in this regard is billable at our hourly development rate.
Website Theme/Template/System Updates
When we take on a custom design project, we build our customizations for the latest version of your platform’s theme that is available at the time that the project begins. We ask that you do not automatically or manually update your website or theme after customization has been done, as new theme versions may or may not be compatible with the changes we’ve made. Updates for WordPress, hosted platforms (Bigcommerce, Volusion, Shopify, 3dCart, e.g), custom websites and other platforms should be handled by the team that created your website. Because of the complexities involved in updates, theme changes, we highly recommend you hire us to perform these tasks. We consider the latest theme version on the day that development begins to be the theme we will customize. If an update is released during the course of development, please contact your account manager about adding additional billable time for rebuilding customization on the new theme. Updates can be handled by purchasing a support agreement from our sales department. Please read our Help & FAQ’s
If you update your website and it breaks, it will cost you more to hire us after the fact.
Important Security Information
Sites that are on Magento, Opencart, WordPress, or another open source platform that requires self-hosting (Hostgator, Godaddy, Bluehost, etc.) need to be secure & backed up. We highly recommend that you regularly back up your site & keep your site secure by using security plugins & 3rd party software. Sitelock.com is useful for website security and can prevent hacking & malware. For a fee, Hostgator will take daily, weekly & monthly backups of your website. 1Digital® Agency is not responsible for your site once we have completed the scope of work. We cannot prevent malware, hacking, viruses or other issues that are related to self-hosting. Contact your hosting provider for more information about how to secure your site.
Refund / Cancellations
Please view our Refund & Cancellation Policy. All sales are final.
Cancelled / Terminated or Abandoned Projects
If a client is engaged in a service agreement with 1Digital Agency and (30) days pass without verbal or written correspondence from that client (or person recognized to speak on the client’s behalf), the project is considered abandoned. 1Digital Agency is not responsible for saving graphics, templates on its test server/sandbox, files, data, and other deliverables. No refunds/credits will be issued. If the client reemerges at a later date, and it is discovered that project deliverables can be recovered, a fee of no more than 50% of the original project price must be paid to either receive any project deliverables or re-engage 1Digital Agency in the project. 1Digital Agency maintains sole discretion over its decision to re-engage in the original service agreement with the client.
If the client terminates or cancels an ongoing project all dues and fees remaining for the project are still due for the project. If the project was paid in full, no refunds will be made to client. There are no oral agreements, understandings or representations made by either party that are outside of this agreement unless they are expressly set forth herein. Client without the consent of 1Digital may not cancel this agreement for services at any point during a project. All fees paid prior to cancellation or termination or abandonment, are non-refundable and remaining fees will remain due. Refunds are not available for the purchase of these services. Should client breach this paragraph, 1Digital will be entitled to damages and attorneys fees for any suit for enforcement.
Requested Items from Client
If the client fails to provide any required documents or other necessary information that 1Digital has requested as part of the scope of work, 1Digital may at its option either terminate this agreement or charge a reinstatement fee in order to continue the project.
Digital Marketing Communication & Freeze Policy
Communication is a keystone of any successful digital marketing campaign. Throughout the course of the campaign, we’ll need your approval on many items, such as keywords, content, and strategy changes. We have many items which can be put on auto-approval at your request so that you can set the level of time commitment to this project that works for your business. For all items which are not on auto approval we expect manual approvals within 48 business hours. If a piece of content goes two weeks without manual approval we consider it automatically auto-approved.
Other items, however, cannot be put on auto-approve and require your attention. If for any reason, a client is unable to give approval or feedback on an essential item, the initial keyword list for instance, for a period of two weeks, 1Digital will freeze work for the digital marketing campaign. If a project remains Frozen for 30 days, the project balance goes into collections. Once a project has been placed into collections it cannot be restarted but the full balance remains due.
In order to keep your site up and running during your project, we work in a sandbox environment when possible. A project can be completed and thoroughly tested on the sandbox environment before ever going live. However, sandboxes cannot completely eliminate downtime. We typically correct any issues right away, but on rare occasions, it can take us up to 24-48 hours to complete live implementations.
Rules Regarding 1Digital Sandbox Environments:
PSD Files of a project are the property of 1Digital Agency until the project is 100% complete and any open payments are fully satisfied. 1Digital holds PSD files for up to 30 days of project completion or site migration date. Past this timeframe, 1Digital may delete the files at its own discretion. If you need PSD files for your record please request them from your account manager once your project is completed and we’ll be happy to send them to you.
Project Phases & Platform Version Control
Like any piece of technology, from a smartphone to a laptop to a video game console, eCommerce platforms are always making updates to their systems. Updated theme versions will be released all the time, and here at 1Digital, we want to deliver your site on the most updated version of your platform if possible. For almost all projects, that’s not an issue. The theme that we begin development on is still the latest theme available when we conclude. However, in the rare cases where a client needs to put their project on pause, or the normal design and development process is subject to consistent unforeseen delays it can happen that a theme may have been updated many times by the platform before the site is ready to launch. This is why we set Project Phase windows. In order to be able to better control the version that your project is launched with. If the timeframe is short, we can easily update the version to the latest and greatest. Longer delays mean more difference between the theme versions and there can be far more complications that need attention, which is why updating to the newest version can be cumbersome, and costly.
Your proposal has an estimated timeline as well as a maximum timeline, where each phase of the project is given a duration which it should not exceed. As long as your project wraps within that maximum timeline 1Digital guarantees that you will launch on your platform’s latest theme version. If your project goes beyond the stated Project Phase windows, you will have the option to update the platform by purchasing additional development time. 1Digital will require 10 hours per delayed month of development time in order to bring your site up to the latest theme version before launch. These hours can be added to your final invoice. The hourly rate is the same as the hourly rate listed within your statement of work. 1Digital also reserves the right to add an additional charge of 10% of the total project price per month of delay in order to recoup the extra costs incurred by the delay.
Our Project Phase windows begin begins on the date of your project kickoff meeting and ends as soon as the site is launched. If you’re worried about exceeding the design or development window it’s a good idea to remember that in web development everything has a ripple effect. For example, the design and development phases run concurrently so delays in approving or commenting on designs cause them to get to development more slowly and stretch that development window. The same thing can be true of data migration, testing or even of the launch phase. A good rule of thumb to use is 1 day of delay from the client side translates into 3 days of delay from the agency side.
These maximum timelines are in place to help make sure your site is as up to date as it can possibly be when it’s launched. If you have questions about how the development window will work with your specific timeline reach out to your project manager to discuss it.
For more details and to review the Project Phase Windows click here.
Although we endeavor to give each visitor the same website viewing experience, 1Digital Agency cannot guarantee all design elements or features will work with all browsers, especially older browsers that don’t support HTML5 or CSS3. Our sites look best in Internet Explorer 11+, Firefox 5+, Chrome 13.5+, Safari 5+. Each platform/technology has a list of supported browsers and we can only support the browsers the platforms support at the time of delivery. Even the browser company at times stops support of their own browsers and this cannot be controlled or the responsibility of 1Digital.
3rd Party Apps & 3rd Party Services
1Digital cannot be held responsible for changes a 3rd party vendor makes to their product between the authorization of this proposal and the installation of the 3rd party service. Integration of 3rd party services is considered based on their capabilities at the time that our scope of work is created.
If your website needs emergency support, and if our team is available to assist, we’re happy to try to resolve your emergency issue as quickly as possible. Emergency support may require our team to stop other activities or handle the issue outside of our normal office hours. Since we are not a 24/7 agency, and our support department does not work weekends/nights/holidays, support is optional and a premium service. Priority support is available at $175/hr during business hours (minimum 3 hours). Weekend, holiday or after hour support is billed at $250/hr (minimum 5 hours).
Approval of Project
On completion of the Project, the Client will be notified and have the opportunity to review it. The Client should advise 1Digital Agency of any unsatisfactory points within 7 days of receipt of such notification. Any of the Project which has not been reported to 1Digital® Agency as unsatisfactory within the 7 day review period will be deemed to have been Initials approved. Once approved, or deemed approved, the contract will be considered completed and the remaining balance will become due. The Contract will remain in effect until all obligations have been completed or until 1Digital Agency has access for revisions and or changes, fixes.
Maintenance and Correction of Errors
1Digital® Agency takes no responsibility for the functionality or maintenance (unless regular maintenance/updates or ongoing search engine optimization are requested by Client as a separate project) of the Website after the project has been completed. Errors (both technical and typographical) attributable to 1Digital Agency will be corrected free of charge, but 1Digital® Agency reserves the right to charge a reasonable fee for correction of errors for which 1Digital® Agency is not responsible, including, but not limited to modification of the Website by a third party and typographical errors contained in materials provided to 1Digital Agency by the Client. Please review our general company design, development and project terms.
Any 3rd party testing tool (Like W3C or Google Validators) are not supported by 1Digital® Agency and are outside of scope as each tool uses a unique methodology to look at different factors that we have limited control over, as the platforms we work with may not support these standards. If you need special validation from a particular tool, this can be scoped and priced at an additional fee.
Contractors & Subcontractors
1Digital® Agency may engage other parties as Sub-Contractors to perform work as needed for different areas of expertise. Client consents and agrees that 1Digital Agency may engage contractors & or subcontractors to provide services as it deems necessary.
Copyrights and Trademarks
The Client represents to 1Digital® Agency and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished or approved to 1Digital® Agency for inclusion in Web pages are owned by the Client, or that the Client has permission from the rightful Client or Source to use each of these elements, and will hold harmless, protect, and defend 1Digital® Agency from any claim or suit arising from the use of such elements furnished or approved by the Client.
Copyright to Web Pages
Copyright to the finished assembled work of web pages and graphics produced by the Developer shall be vested with the Client upon final payment for the project. This is to include, design, photos, graphics, source code, work-up files, text, and any program(s) specifically designed or purchased on behalf of the Client for completion of this project. Rights to photos, graphics, source code, work-up files, and computer programs not specifically designed or purchased on behalf of the Client, are specifically not transferred to the Client, and remain the property of their respective Clients. 1Digital® Agency retains the right to display graphics and other Web design elements as examples of their work in their respective portfolios. 1Digital® Agency shall include the following copyright notice (or any other notices requested by the Client) to be displayed on each page of the Website that can be viewed by a user: “Copyright 2013 (your company name) all rights reserved.”
Inspiration Sites Copyright and Trademark
1Digital will use the example sites that clients provide us as inspiration to deliver final products which are as close to the sites that the clients are envisioning. However, 1Digital will not directly copy the design of another company’s site. 1Digital’s priority is to protect ourselves, and our clients, against a trademark claim, and we reserve the right to refuse any design direction which we may interpret to be in violation of trademark law.
1Digital® Agency will not at any time or in any manner, either directly or indirectly, use for the personal benefit of 1Digital® Agency, or divulge, disclose, or communicate in any manner any information that is proprietary to the Client (e.g., trade secrets, know-how and confidential information). 1Digital® Agency will protect such information and treat it as strictly confidential. This provision shall continue to be effective after the termination of this Agreement.
Each party will defend, indemnify and hold harmless the other from and against any and all losses, suits, liabilities, damages and expenses (including, without limitation, reasonable attorneys’ fees and court costs) arising from any claim, action or proceeding (collectively “Claims”) brought by any third party arising out of or relating to the other’s breach of this Agreement or the Terms of Service or failure to comply with applicable law or clients use of their website. Each party will give the other prompt written notice of any such Claim and provide the indemnifying party reasonable assistance, at the indemnifying party’s expense, in the defense of the Claim. The indemnifying party shall have the right to assume primary control of the defense and settlement of the Claim, provided that the indemnified party may participate at its own cost and expense.
Limitation of Liability
IN NO EVENT SHALL 1DIGITAL® AGENCY BE LIABLE TO THE CLIENT OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE, DATA, OR USE, RELATED TO THIS AGREEMENT, THE PERFORMANCE OF ANY SERVICES, IMPAIRMENT OF ASSETS, OR USE OF THE SERVICES, WHETHER IN AN ACTION IN CONTRACT, BREACH OF WARRANTY OR TORT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, and (ii) neither party’s liability arising out of this Agreement shall in any event exceed the greater of (i) the fees paid and payable by Client to 1Digital® Agency under this Agreement during the term or contract period immediately preceding first assertion of any claim, and (ii) Five Hundred Thousand US dollars (US $500,000), regardless of whether any action or claim is based in contract, misrepresentation, warranty, indemnity, negligence, strict liability or other tort or otherwise.
Governing Law. This Agreement shall be subject to and governed by the laws of the Commonwealth of Pennsylvania and any action associated with this contract or work performed shall be subject to the exclusive jurisdiction of the Philadelphia County Court of Common Pleas.
Legal Fees and Other Expenses.
In the event that customer brings an action in law and/or equity against 1Digital, the customer shall be responsible for all of 1Digital’s legal expenses, attorneys fees and court costs in the event the customer does not prevail in its claim. In the event that 1Digital has to bring an action against the customer, and 1Digital prevails, the customer is responsible for all of 1Digital’s legal expenses, attorneys fees, and court cost.
The Agreement contained in this “Service Agreement” constitutes the sole Agreement between 1Digital® Agency and the Client regarding the project outlined above. Any additional work not specified in this Agreement requires a separate Agreement. All prices specified in this Agreement will be honored for three (3) months after both parties sign this Agreement. Continued services after that time will require a new Agreement.
In the event of any default of any material obligation by or owed by a party pursuant to this Agreement, then the other party may provide written notice of such default and if such default is not cured within ten (10) days of the written notice, then the non-defaulting party may terminate this Agreement and bring legal action.
By making a payment to 1Digital® Agency, Client understands and agrees to these terms of service along with the proposal terms of service, conditions and stipulations of this Agreement on behalf of his or her organization or business. No signature is necessary.
This Agreement constitutes the entire understanding of the parties. Any changes or modifications thereto must be in writing and signed by both parties.