Terms and Conditions of Service
I, (“Client”), the payee of this invoice, hereby confirm that by submitting my payment towards this invoice, I have read, understood, and agreed to all the terms and conditions outlined in this Services Agreement, including the details provided in the invoice.
ENGAGEMENT. Client, by its execution hereof, engages Tristar Digital Media, LLC as an independent consultant to perform the services outlined in the proposal in the Terms and Conditions of Service (“Terms and Conditions”). These Terms and Conditions, are hereinafter referred to collectively as the “Agreement”.
TERM. This Agreement will take effect on the date it is accepted by Tristar Digital Media, as specified in this document. If the service is charged as a one-time fee, it will be noted accordingly. If the service is a monthly fee, it will be detailed in the item and will persist for the Project Duration specified in the Scope of Work section above, after which it will proceed on a month-to-month basis.
This Agreement may be terminated immediately by Tristar Digital Media if (i) Client fails to pay any fees as and when due hereunder, or (ii) Client ceases to cooperate with Tristar Digital Media or otherwise makes it difficult for Tristar Digital Media to perform the services contracted hereunder, or (iii) Tristar Digital Media discovers that Client is utilizing its website for any purpose that violates federal, state or local law.
FEES AND PAYMENTS. During the Term, Client agrees to pay in full when due the monthly fees for the service outlined in the scope of services of the proposal. The first monthly fee shall be due upon acceptance of this Agreement by Client and Tristar Digital Media. All subsequent monthly fees under this Agreement shall be due on the same calendar day of each successive month (i.e., if the Agreement is accepted on May 10, subsequent monthly fees payments shall be due on June 10, July 10, etc.). Client acknowledges and agrees that any fee not paid within ten (10) days after its due date shall bear interest at the rate of 1.5% per month from such tenth (10th) day until paid. Once paid, all fees shall be nonrefundable. Tristar Digital Media reserves the right, at any time and from time to time, to increase the monthly and other fees charged by Tristar Digital Media for the services provided hereunder upon thirty days (30) days’ prior notice to Client.
PREVIOUS UNDERSTANDINGS & MODIFICATIONS The Parties agree that this contract supersedes and replaces all previous understandings, agreements, or contracts, whether written or verbal, by and between TriStar Digital Media and Client. Any modification of this Contract will not be valid unless made in writing, or electronically communicated by TRISTAR DIGITAL MEDIA, and is signed and acknowledged by both parties, either in writing or electronically
GENERAL CHANGES. Unless otherwise provided in the Proposal, the client is allowed one design change to the initial design. Client shall pay additional charges for changes in excess of the three design requests or after sign off of design, at Tristar Digital Media standard hourly rate of $150.00 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.
SUBSTANTIVE CHANGES If Client requests or instructs Changes that amount to a revision in or near excess of 50 percent (50%) of the time required to produce the Deliverables, and or the value or scope of the Services, Tristar Digital Media 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 Tristar Digital Media (Is this applicable)
MATERIAL BREACH. In the event of any material breach of this Agreement by either party, the other party may terminate this Agreement by giving written notice to the other party. Such notice must specifically identify the breach. Termination for material breach will take effect fifteen (15) business days after such notice is delivered by the terminating party. If such breach is capable of cure, the terminating party must give the breaching party not less than fifteen (15) business days opportunity to cure before termination becomes effective. If the breaching party does not cure by the end of the fifteen (15) business days, termination will take effect sixteen (16) business days after such notice is delivered by the terminating party. Any subjective or software-based analysis of the content quality is not a valid consideration for a Material Breach of the Agreement.
TIMING Tristar Digital Media will prioritize performance of the Services as may be necessary or as identified in the Scope of Services, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Scope of Services. Tristar Digital Media may request the client to review deliverables. If requested by Tristar Digital Media, Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing/email or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Tristar Digital Media. Tristar Digital Media shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Tristar Digital Media 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 Tristar Digital Media’s obligations under this Agreement.
CLIENT AUTHORIZATION. Client authorizes Tristar Digital Media. to (i) access without limitation Client’s website to analyze its content and structure; (ii) to alter Client’s website as necessary or desirable in Tristar Digital Media’s sole and absolute discretion for purposes of marketing campaign performance optimization, and for any other purpose agreed to by Client and Tristar Digital Media.; (iii) upload such pages and content to the Client’s website as Tristar Digital Media. deems appropriate in its sole and absolute discretion for purposes of search engine optimization; (iv) make use of all of Client’s logos, trademarks, copyrights, website images and similar items to create informational pages and for other uses deemed necessary by Tristar Digital Media. to provide the services subscribed for hereunder; and (v) communicate with third parties as Tristar Digital Media. deems necessary in its sole discretion to perform Tristar Digital Media’s services hereunder, including but not limited to Client’s web designer.
CLIENT CONSENT TO INSTALLATION OF TELEPHONE TRACKING NUMBER Client consents to the optional placement of a telephone tracking number on Client’s website and on marketing materials and web assets, and further consents to the recording of all telephone calls that are routed through the telephone tracking number. Client understands that the telephone tracking number will remain on the Client’s website and embedded in Client’s assets during the Term. Within a reasonable time after the termination of this Agreement, the telephone tracking number will be removed from Client’s website and web assets.
CLIENT ACKNOWLEDGEMENTS Client makes the following acknowledgments: (i) that Tristar Digital Media cannot control or exert influence over the policies or operations of any search engine companies or any other third parties regarding the content of the sites that are accepted by the search engine companies or other third parties; (ii) that Tristar Digital Media will not be responsible for any changes or alterations to Client’s website made by Client or any third parties that negatively impacts the rankings, performance or visibility of Client’s website; (iii) that because the results of the services to be provided by Tristar Digital Media hereunder depend upon a number of factors outside of Tristar Digital Media control, Tristar Digital Media cannot guarantee the results of its services to Client; (iv) that because the utilization of certain keywords and key phrases are very competitive, and because search engines are constantly changing search engine ranking algorithms and bids, Tristar Digital Media cannot guarantee that Client’s website will achieve the highest search result position in any search engine or consistent search result positions in the top rankings; (v) that certain search engine companies may affect the rankings of new and/or unproven companies (for example, “sandboxing”); (vi) that search engines will, from time to time, drop listings without specific causes; and (vii) that while Tristar Digital Media shall use commercially reasonable diligence to promptly submit and/or effect a change in rankings of Client’s website, some search engines may take several months or longer to list and/or effect a change in rankings.
OWNERSHIP- In the event of termination, the Parties agree that the website, graphics & content developed by Tristar Digital Media on behalf of the client as a function of this agreement will be released to the client at no additional charge once they have been onboard and paid for at least 12 (twelve) months of service. Alternatively, clients can buy out the website and or content prior to 12 months of payments with a one-time payment of $4,500. After that time the Client may request an electronic copy of the Website Files & Graphics to be implemented and installed by a 3rd party on a new host (Unless a maintenance/hosting agreement with Tristar Digital Media is acquired by the client). Modifications by Client or their 3rd party may be required for the website to function adequately depending on the new host. This third-party, shall thereafter be solely responsible, and Client shall not hold Tristar Digital Media liable, for any aspect of the Website including, but not limited to: WordPress updates and forward compatibility, Licensed plugins and add ons, redirects, form settings, hosting Website on a non- Tristar Digital Media server, and implementing a satisfactory transition of the Website.
FORCE MAJEURE. Tristar Digital Media shall not be liable for, nor considered to be in breach under this Agreement due to, delay or failure to perform under this Agreement as a consequence of any conditions that are beyond Tristar Digital Media’s reasonable control after exercising commercially reasonable efforts.
DISCLAIMERS OF LIABILITY. IN ADDITION TO ANY DISCLAIMERS OF LIABILITY FOUND ELSEWHERE IN THESE TERMS AND CONDITIONS, Tristar Digital Media SHALL NOT BE LIABLE TO CLIENT FOR INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, LOST PROFITS, WHETHER FORESEEABLE OR BASED ON BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY OR NEGLIGENCE ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED IN THIS AGREEMENT. TRISTAR DIGITAL MEDIA MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS OR THIRD PARTY CONTENT OF, OR SOFTWARE, EQUIPMENT OR HARDWARE OBTAINED FROM, ANY THIRD PARTIES. Tristar Digital Media will not be responsible for results due to any alterations or overwrites made to a website by another party, as Client understands that this can adversely affect the search engine rankings of Client’s website(s), nor for the effect of Client linking to any particular websites without the prior consultation and approval of Tristar Digital Media
CLIENT REPRESENTATION & WARRANTIES; INDEMNITY. Client represents and warrants to Tristar Digital Media the following: (i) that Client owns the URL listed on the reverse side of this Agreement; and (ii) that Client owns or has the absolute and unrestricted right to use and to grant to Tristar Digital Media the right to use all graphics, photos, designs, intellectual property and artwork, and any element or elements thereof, that Client furnishes to Tristar Digital Media. Client indemnifies and holds harmless Tristar Digital Media’s owners, officers, directors and employees from and against any and all liabilities, costs and expenses (including but not limited to reasonable attorneys’ fees and costs incurred at trial, appeal or other legal proceeding) arising out of or with respect to any breach by Client of any of the foregoing representations and warranties, or the breach of any representations and warranties contained elsewhere in this Agreement, and/or the failure by Client to comply with any covenant of Client contained in this Agreement. If Client is a company, the individual signing this Agreement represents and warrants that the execution of this Agreement has been authorized by all necessary action of the Client, and that the undersigned has full authority to sign on behalf of and bind the Client hereunder.
GOVERNING LAW/CIVIL LAWSUIT. This Agreement shall be governed by and under the laws of the State of Illinois without regard to conflict of laws principles. Tristar Digital Media may file a lawsuit in a court of competent jurisdiction in order to collect payments due from Client pursuant to this contract. If Client breaches this Contract (including, without limitation, due to Client’s failure to make timely payment), Client shall be required to reimburse Tristar Digital Media’s and its affiliates’ costs and reasonable fees incurred in the enforcement of this Contract. In any case, should Tristar Digital Media file a civil lawsuit, THE MAKING OF CLAIMS OR RESOLUTION OF DISPUTES PURSUANT TO THIS CONTRACT SHALL BE IN EACH CLIENT’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. CLIENT AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW; (1) ANY AND ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT WILL BE RESOLVED INDIVIDUALLY IN THE FORUM DESIGNATED IN THIS SECTION, WITHOUT RESORT TO ANY FORM OF CLASS ACTION; AND (2) IF TRISTAR DIGITAL MEDIA IS THE PREVAILING PARTY, TRISTAR DIGITAL MEDIA SHALL INCLUDE BUT NOT LIMITED TO ALL OF THE FILING FEES AND RELATED ADMINISTRATIVE COSTS, REASONABLE ATTORNEY’S FEES, ADMINISTRATIVE AND OTHER COSTS OF ENFORCING THIS AGREEMENT, INCLUDING THE COSTS OF SUBPOENAS, DEPOSITIONS, TRANSCRIPTS AND THE LIKE, WITNESS FEES, PAYMENT OF REASONABLE ATTORNEY’S FEES, AND SIMILAR COSTS RELATED TO COLLECTING AN AWARD, WILL BE ADDED TO, AND BECOME A PART OF, THE AMOUNT DUE PURSUANT TO THIS AGREEMENT. BY EXECUTING THIS AGREEMENT, CLIENT AGREES TO SUBMIT TO THE JURISDICTION OF ILLINOIS COURTS, SPECIFICALLY COURTS LOCATED IN THE CIRCUIT COURT OF WILL COUNTY, ILLINOIS. CLIENT FURTHER AGREES THAT IN THE EVENT OF A LAWSUIT IN WHICH THE CLIENT IS THE PREVAILING PARTY, CLIENT DAMAGES ARE LIMITED TO ONLY THE SUM OF MONEY TENDERED BY CLIENT TO TRISTAR DIGITAL MEDIA.
CREDIT CARD DISPUTES AND CHARGEBACKS Client agrees to pay a total of $500.00 for any credit card dispute attempts, plus all collection and legal fees until the complete amount is paid in full. This shall not serve as a penalty, but as a fee for extra labor to research and submit additional paperwork for the credit card processor in order for Tristar Digital Media to rebut and fight such action. If at any point in time Client requests a chargeback from their credit card company, Tristar Digital Media reserves the right to use any and all correspondence with Client to prove the legitimacy of the transaction. Some examples of correspondence may include, but is not limited to the following documents: (a) any and all signed agreements, whether signed via E-Sign or in person; (b) receipts of purchase; (c) receipts of down payment; (d) receipt of any payment for the specific charge; (e) delivery documentation should any claim refer to any services not being rendered or goods not being delivered; (f) the Client’s IP Address showing what computer signed the agreement via E-Sign and where; and (g) any and all other correspondence regarding the Client’s transaction to evidence services being rendered, proving the legitimacy of the transaction. Should Tristar Digital Media discovery documentation provide sufficient evidence of a false chargeback, Client shall be liable for any and all fees and expenses incurred during the dispute resolution, plus the $500.00 fee listed above.
NO GUARANTEE OF SUCCESS THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TRISTAR DIGITAL MEDIA MAKES NO PREDICTIONS, WARRANTIES, OR GUARANTEES, EXPRESS OR IMPLIED, ABOUT THE QUALITY OF ANY OF THE SERVICES PROVIDED BY TRISTAR DIGITAL MEDIA, ANY CREATOR, OR OTHER INDIVIDUAL, COMPANY, OR SERVICE PROVIDER UTILIZING THE SERVICES OR FEATURED ON THE SERVICES AND ASSUMES NO LIABILITY RELATED THERETO. TRISTAR DIGITAL MEDIA MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING BRAND’S POTENTIAL EARNINGS OR ANY SALES GENERATED FROM THE SERVICES, WHICH WILL BE INFLUENCED BY A NUMBER OF FACTORS BEYOND THE CONTROL OF TRISTAR DIGITAL MEDIA. IT IS POSSIBLE THAT BRAND WILL NOT EARN ANY MONEY OR INCREASE IN SALES AT ALL.
MISCELLANEOUS. This Agreement may not be assigned by Client without the prior written consent of Tristar Digital Media which may be withheld or denied by Tristar Digital Media in its sole and absolute discretion. The terms and conditions of this Agreement shall insure to the benefit of and be binding upon the successors and permitted assigns of the parties hereto. The prevailing party in any suit, action or proceeding (including, but not limited to, an arbitration proceeding) arising out of or in connection with this Agreement, shall be entitled to an award of reasonable attorneys’ fees, costs and disbursements incurred by it in connection therewith. Any failure by Tristar Digital Media to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times. All previous communications about the subject matter of this agreement, either oral or written, are hereby abrogated and withdrawn, and this agreement constitutes the entire agreement between Client and Tristar Digital Media with regard to the subject matter hereof. No terms, conditions, understandings, or agreements purporting to modify or vary the terms of this document shall be binding unless hereafter made in writing and signed by both Client and Tristar Digital Media. There are no third-party beneficiaries of or to this Agreement or any of the provisions hereunder. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same instrument. Any signature to this Agreement that is transmitted by fax or email transmission shall be considered an original signature for all purposes. It is the intent of the parties hereto that all provisions of this Agreement shall be enforced to the fullest extent possible. If, however, any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future law, and not subject to reformation, then such provision shall be fully severable, and this Agreement shall be construed and enforced as if such provision was never a part of this Agreement. The rule of construction that an ambiguity in a contract will be construed against the drafter is hereby waived by both parties hereto. Tristar Digital Media reserves the right to make changes to these Terms at any time. All changes are effective immediately when posted. Your continued use of the Platform following the posting of any revised Terms constitutes your acceptance and agreement to the updated Terms.