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Last Update: October 8, 2013; Effective October 8, 2013
The terms and conditions set forth herein constitute the full and complete Agreement between You, Your owners, employees, managers, heirs, agents, representatives, successors and assigns (“You” or “Your”) and 1Eighty Design, LLC (“1Eighty Design”). Your agreement to be bound by the terms contained herein is acknowledged by Your use of the 1Eighty Design Web Site, professional services, hosting services, support or maintenance services and/or any 1Eighty Design software, service, and/or product made available to You.
The terms and conditions stated herein, as may be amended from time to time by 1Eighty Design, together with any separate Professional Services Contract, Hosting Services Agreement, Web Maintenance Services Agreement, and any applicable 1Eighty Design policies and procedures, constitute the complete and exclusive agreement between You and 1Eighty Design concerning Your use of 1Eighty Design’s products and/or services. The terms and conditions stated herein, along with any terms and conditions in any separate Professional Services Contract, Hosting Services Agreement and/or Web Maintenance Services Agreement supersede and merge all prior and contemporaneous agreements, whether written, oral or otherwise, and all discussions between You and 1Eighty Design, including any statements made by any representative of 1Eighty Design at any time unless contained in these terms and conditions or written in a contract signed by 1Eighty Design.
By purchasing and/or using 1Eighty Design’s goods, products and/or services, You acknowledge that You have read, understood, and agree to be bound by all terms and conditions stated herein and any other applicable policies or procedures of 1Eighty Design, as may be amended by 1Eighty Design from time to time, and by all terms and conditions of any other written agreements between You and 1Eighty Design.
You agree to be bound by any amendments 1Eighty Design may make to the terms and conditions sated herein as of the date in which any such changes are published by 1Eighty Design on its Company Web Site. You agree that 1Eighty Design shall not be bound by any representations made by third parties who You may use to purchase goods and/or services which may be offered by 1Eighty Design or any other party. You further agree that 1Eighty Design shall not be liable or responsible in any manner for any products or services provided by any third party.
PAYMENT OF FEES
All payments owed by you to 1Eighty Design shall be issued to “1Eighty Design, LLC” in U.S. dollars only through the use of a personal/business check or money order.
If 1Eighty Design collects any payment due by You to 1Eighty Design through an attorney or through the means of a collection agency or similar service, or if 1Eighty Design prevails in any action to which You and 1Eighty Design are parties, You will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and 1Eighty Design’s reasonable attorney and collection agency fees.
PAYMENT OF FEES FOR WEB SITE HOSTING AND MAINTENANCE SERVICES
Web Site hosting services and Web Site maintenance services payments are due upon account activation and future account renewal. Billing will continue to occur automatically until You request in writing cessation of services. If shortfalls in payment to 1Eighty Design of the full invoice amount occur due to bank fees, transfer fees, or the like, 1Eighty Design will re-invoice You for any such shortfall. Should payment in full of any invoice not be received by 1Eighty Design within thirty (30) days after account activation or renewal, 1Eighty Design, at its sole discretion, may discontinue, withhold or suspend such services to You.
Cancellations of services must be made in writing and cannot be made without first verifying Your correct Customer ID (provided by 1Eighty Design) and account password.
Setup fees for any services or plans are not refundable, regardless of the length of time the services and/or plan is used by You.
Should You follow standard procedures and cancel services with 1Eighty Design, You are entitled to a refund equivalent to the length of time that has been paid for, but not used. This refund is calculated based on a monthly rate, depending on the plan that was ordered. The refunded months will begin with the first full month after the current month. “Free Months” are not taken into account when calculating a refund.
You are responsible for providing 1Eighty Design with the proper and correct billing and payment Information. In addition, You are responsible for keeping all contact information, especially email addresses, up to date and current. 1Eighty Design conducts all communication with You via email, including support, billing and network administration communication. You agree to accept all communications from 1Eighty Design via email, including support, billing and network administration communication. Therefore, a current and active email address for all pertinent parties is absolutely essential. Any and all fees incurred due to incorrect billing information are the sole responsibility of You.
Changes to services provided to You must be submitted in writing via email. Upgrades are charged a setup fee of the difference between the setup fees of the two plans (the old plan and the upgraded plan), and a prorated fee for the difference in plan prices for any time that was paid for in advance. Downgrades receive a prorated credit for any time paid for in advance after the current month, but no credit is given for any initial setup fees. You are responsible for, and must be aware of, what will be gained and/or what will be lost in changing plans. 1Eighty Design is not responsible for lost files, data and/or information due to changes in plans.
1Eighty Design is not responsible for Your failure to use the services/plans offered by 1Eighty Design. You have the right to cancel the services/plans other than products or services covered under a separate written contract or agreement between You and 1Eighty Design that You have purchased pursuant to the terms and conditions contained in any such written contract or agreement. Therefore, non-use of the services/plans offered DOES NOT constitute a cancellation of said services/plans.
Additional Fees: You agree that use of the Services hereunder will not exceed any usage limits/allocations set forth under Your particular plan details. If You do exceed any of the specified usage limits/allocations, 1Eighty Design may, at its sole discretion, assess You with additional charges (where those additional charges are provided to You when you begin the service), suspend the performance of such service or terminate such services to You. In the event that 1Eighty Design elects to take any corrective action, You may not be entitled to a refund of any unused pre-paid fees.
Prior to activation of Your user account You agree to submit a check payable in U.S. dollars against a bank or financial institution in good standing located within the United States. 1Eighty Design is under no obligation to initiate service until the proceeds of such check have been cleared by such bank or financial institution and have been received by 1Eighty Design. Invoices will be submitted to the email address on file for You as a courtesy only and You agree to receive such invoices via email. Payment for subsequent fees is due 30 days from the date of invoice. It is Your responsibility when paying by check to make sure that Your payment is timely received by 1Eighty Design. An administrative fee of $25.00 may be charged for the refusal, rejection or return of any such check for any reason whatsoever or any portion thereof. In addition, refusal, rejection or return of any such check for any reason whatsoever, or any portion thereof, is grounds for contract and/or account suspension and/or termination at the sole discretion of 1Eighty Design.
PAYMENT OF FEES FOR WEB SITE DEVELOPMENT AND DESIGN SERVICES
Web development and design service payments are to be made according to the payment schedule set forth in the contract or agreement between You and 1Eighty Design. The final payment is due within twenty (20) days after completion of services. Should You cancel the written contract or agreement before it is completed, then You agree to forfeit the initial payment and shall, in addition, compensate 1Eighty Design for any additional time spent per any hourly rate listed in the written contract or agreement.
Any changes or additions to the written contract or agreement will be charged at the hourly rate listed in such contract or agreement rounded up to 20 minute intervals after a minimum of one hour. Any significant additions or modifications will be covered under a new or amended written contract or agreement. Additional Web Site development and/or design services completed by 1Eighty Design after the written contract or agreement is completed that is not under a new written contract or agreement will be in accordance the terms and conditions stated herein and in accordance with the terms and conditions of the original written contract or agreement for Web Site development and/or design services.
WEB SITE HOSTING SERVICES
1Eighty Design agrees to provide Web Site hosting services according to any plan selected by You and agreed to between You and 1Eighty Design. 1Eighty Design reserves the right to change, amend and/or otherwise alter the services provided with equivalent services without prior notice to You. Web Site hosting services shall include, without limitation, server space and data transfer allowances for the purposes of displaying a business or personal Web Site.
1Eighty Design is a hosting reseller and follows the terms and conditions set by the hosting company (“Host” or “Hosts”) it resells services for. Hosting clients will be monitored to ensure they operate under the Hosts’ terms and conditions of service (a copy of the Host’s terms will be provided to you upon Your request). If Your Web Site is not in agreement with the Host’s terms, you will be notified in writing. Any failure by You to rectify Your Web Site could result in suspension or termination as outlined below. Since 1Eighty Design is not in control of the Hosts’ services it cannot be held responsible for any downtime suffered during the use of such Web Site hosting services.
Hosting services charges are based upon the rates set by the Host. Should the rates increase, 1Eighty Design reserves the right to bill You for the difference for the remainder of Your term of such services.
1Eighty Design strictly enforces compliance with Hosts’ acceptable use policies. If we find Your Web Site does not comply, it is cause for immediate suspension and/or termination of Your account at the sole discretion of 1Eighty Design. 1Eighty Design reserves the right to refuse to provide service to anyone at their sole discretion, for any reason whatsoever.
In no event shall 1Eighty Design be liable to You for any sums in excess of the payments made by You for Web Site hosting services, and You shall defend, indemnify and hold harmless 1Eighty Design from and against any and all claims for damages and losses of any kind whatsoever in excess of Your payments to 1Eighty Design, including but not limited to, money damages, lost profits, or any other losses due to a problems with Your Web Site.
After cancellation or non-renewal, all information stored on any Host’s network that was placed there by You or is a result of You using the services provided by 1Eighty Design is deleted after a period of approximately five (5) days from the date of cancellation. Therefore, should You require a copy of said information, You should take steps necessary to retrieve that information prior to cancellation of services. Should You fail to retrieve such information, and should You require a copy of said information after the date of cancellation, it is possible that 1Eighty Design can provide the information to You for an additional fee (to be determined at the time of request but could include data restoration and custom services fees). However, 1Eighty Design does not guarantee that it will be able to provide the information to You after the date of cancellation.
WEB SITE MAINTENANCE SERVICES
1Eighty Design agrees to provide Web Maintenance Services according to the plan selected by You. 1Eighty Design reserves the right to change, amend and/or otherwise alter the services provided with equivalent services without prior notice to You. Web Site maintenance services shall include, without limitation, minor updates of current pages of Your Web Site. Web Site maintenance services do not include redesigning the appearance, adding major features or changing the structure of the Web Site. While 1Eighty Design will use the utmost care, 1Eighty Design does not warrant any changes made and does not guarantee Your website will be error free. After any changes are made by 1Eighty Design to Your Web Site, it is Your responsibility to check that Your site is correct and functioning.
A minimum of 20 minutes will be used for each service request made. If You need Web Site maintenance services and do not have a maintenance plan, a minimum of 60 minutes will be billed in 20 minute intervals after the first hour per each request. Turnaround time for emergencies is not guaranteed. Emergencies are defined as situations where Your Web Site is inoperable; it does not include adding new content. Unused time on Your plan does not rollover to the next month.
Text, photographs, images, figures and other graphics (“Data”) will be supplied by You. By submitting Data to 1Eighty Design, You hereby warrant, represent, and guarantee that you own all rights, title and interest in and to such Date and/or are duly authorized by the owner of all such Data to use the supplied Data in the manner You indicate. You will defend, indemnify, and hold harmless 1Eighty Design from and against and against any and all claims arising in any manner from the use of any Data supplied by You.
In order for 1Eighty Design to service a Web Site, You must provide FTP access to the Web Site to 1Eighty Design if You do not use 1Eighty Design’s hosting services. By providing access to 1Eighty Design, You authorize 1Eighty Design to access Your account. If You do not provide this information or it is changed, 1Eighty Design cannot be held responsible for not performing services. Web Sites not developed by 1Eighty Design may not be eligible for Web Site maintenance services.
In no event shall 1Eighty Design be liable to You for any sums in excess of the payments made by You for Web Site maintenance, and You shall defend, indemnify and hold harmless 1Eighty Design from and against any and all claims for damages and losses of any kind whatsoever in excess of Your payments to 1Eighty Design, including but not limited to, money damages, lost profits, or any other losses due to a problems with Your Web Site.
WEB DEVELOPMENT SERVICES
1Eighty Design takes the utmost care with respect to the Web Site development. However, You understand, acknowledge, and agree that there is no guarantee made by 1Eighty Design as to the quality, exposure and development of Your Web Site. 1Eighty Design will not be liable for any material you provide to be included on Your Site, and 1Eighty Design shall not be liable for any coding errors to the Web Site after the Web Site has been published. In the event 1Eighty Design fails to comply with the terms of any written contract or agreement between you and 1Eighty Design for Web Site development services, then Your sole remedy is a refund of the payments made by You to 1Eighty Design for such services. In no event shall 1Eighty Design be liable to You for any sums in excess of the payments made by You to 1Eighty Design for Web Site development, and You shall defend, indemnify and hold 1Eighty Design harmless from any and all claims for damages and losses of any kind whatsoever in excess of Your payments to 1Eighty Design, including, but not limited to, money damages, lost profits, or any other losses due to a problem with Your Web Site.
1Eighty Design shall have the right to use Your Web Site for display, publication, promotion and advertisement purposes. All images and designs created by 1Eighty Design for Your Web Site are protected by federal copyright law and may not be copied by You or any other party without the prior written consent of 1Eighty Design. Data provided by You to 1Eighty Design will remain Your property. In addition, You acknowledge and understand that other than the rights to use Your Web Site, You have no rights in or to or ownership of in any source code included in Your Web Site. Upon dissolution of or the cessation of operation of 1Eighty Design, or any of its successors or assigns, You will be granted full rights to any such source code, provided that you may not sell or transfer any such source code to any other party.
In the case that your Web Site is hosted on 1Eighty Design’s server, 1Eighty Design may utilize common source code that resides on 1Eighty Design’s server to make Your Webs Site function. Moving Your Web Site to another server could make Your Web Site inoperable as the common source code would not be available. Furthermore, 1Eighty Design’s content management system’s source code is not available to you and is not part of any quoted Project. Such source code is and shall remain the sole property of 1Eighty Design.
Any damage done to Your Web Site (modifying source code, deleting files, etc.) by You is Your sole responsibility. Work done by 1Eighty Design to repair any such damage will require additional billing to be determined in its reasonable discretion by 1Eighty Design. You may also incur additional billing for any design changes after you have approved the initial design of Your Web Site.
1Eighty Design will take the utmost care in developing Your design but You understand, acknowledge, and agree that it is Your responsibility to make sure the content is accurate. 1Eighty Design shall not be liable for any materials published.
1Eighty Design shall have the right to use the design for display, publication, promotion and advertisement purposes. All images and graphics created by 1Eighty Design for the design are protected by federal copyright law and may not be copied by You or any other party without the prior written consent of 1Eighty Design. Images, documents and Data provided by You to 1Eighty Design will remain Your property.
Design services requiring printing by a third party will be Your responsibility. While 1Eighty Design will facilitate the actions between You and any such third party, it will be Your responsibility to approve the work of and make all necessary payments to any such third party. 1Eighty Design shall not be held responsible for the quality of work provided by any third party.
1Eighty Design, subject to the terms and conditions set forth herein, hereby grants You a non-exclusive, limited, personal, license to use the 1Eighty Design services for the Term set forth herein. Your rights under hereunder, and under any other written contract or agreement between You and 1Eighty Design may be assigned by You only upon prior written notice by You and express written approval by 1Eighty Design. Any other assignment or attempted assignment by You of such rights shall be null and void.
OWNERSHIP OF INTELLECTUAL PROPERTY
1Eighty Design owns all rights, titles and interests in and to 1Eighty Design’s intellectual property, including, but not limited to, trademarks, trade names, service marks, inventions, copyrights, trade secrets, source code, patents, pending patent applications, know-how relating to the design, function or operation of plans and of the hardware and software systems and resources necessary to provide any individual service elements of which they consist (hereinafter collectively referred to as “1Eighty Design IP”). Neither the terms and conditions stated herein, nor the terms and conditions of any separate written contract or agreement between You and 1Eighty Design shall constitute any license to You to use any 1Eighty Design IP. Your use of any 1Eighty Design IP proprietary information owned or licensed by 1Eighty Design is limited to Your use in connection with the 1Eighty Design Web Site, Web Site design services, Web Site hosting services, Web Site maintenance services, or other services referenced herein, and/or any 1Eighty Design software, service, or product made available to You.
DISCLOSURE OF INFORMATION
We do not sell, trade, or otherwise transfer to outside parties Your personally identifiable information. This does not include trusted third parties who assist us in operating our Web Site, conducting our business, or servicing You, so long as those parties agree to keep this information confidential. We may release Your information when we believe release is appropriate to comply with applicable laws or regulations, or to enforce our Web Site policies or the terms and conditions of Hosts, or to protect the legal or property rights, personal property, or personal safety of You, 1Eighty Design, or its employees, agents, or representatives, or of any third party. However, non-personally identifiable visitor information may be provided to other parties for marketing, advertising, or other uses.
The terms and conditions stated herein shall remain in full force and effect during the period selected by You at the commencement of Your account or for the length of any written contracts or agreements between You and 1Eighty Design or the duration of time using products developed by 1Eighty Design, whichever period is longer. Periodic accounts (monthly, annual, biannual) shall be automatically renewed and the payment frequency for such accounts is established according to the payment method listed on the account. Additional options/overages are billed monthly.
SUSPENSION AND TERMINATION
Suspension – At the sole option of 1Eighty Design for any reason set forth herein or in the event that You breach any of Your obligations under these terms and conditions, or under the terms and conditions of any written contract or agreement between You and 1Eighty Design, including, but not limited to the payment of fees terms or any violation of a Host’s Acceptable Use Policy or terms and conditions of use, 1Eighty Design may suspend Your account by deactivating any access by You and/or by Web users to any information contained on the servers related to Your account while maintaining the information and data related to Your account upon such servers. Suspension shall specifically include the disabling of Your hosted domain and/or any access to information or data related to Your account. 1Eighty Design may, at its sole discretion, provide You with notification of such suspension. At 1Eighty Design’s sole discretion, 1Eighty Design may provide You with an opportunity to correct such breach or violation. Upon being notified of an opportunity to correct such breach or violation, if such breach or violation is not corrected as instructed by 1Eighty Design, the account may be terminated. Service charges will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such charges during any such period of suspension. Should any account require suspension, 1Eighty Design will retain the right to recover from You costs, losses, damages, indemnity, defense costs, expert costs, reasonable collection costs and/or reasonable attorney’s fees or other costs of any kind as may be applicable under Indiana Law.
These terms and conditions shall remain in full force and effect until the business relationship between you and 1Eighty Design is terminated, provided, however, that all terms and conditions relating to defense, indemnity, collection and payment shall survive any such termination. Termination shall include, without limitation, the removal of any and all of Your information from Hosts’ servers. Such information or data may or may not be made available to You by 1Eighty Design after any such termination. Termination of Your account is within the sole discretion of 1Eighty Design and Your account may be immediately terminated in accordance with these terms and conditions, at any time with immediate effect.
1Eighty Design may, at its sole discretion, limit or deny access to Hosts’ servers, for any reason, including the blocking of certain ports and/or the denial of certain services, if, in the sole discretion of 1Eighty Design, such limitations or denials of access are required to assure the security of the Hosts’ network, the integrity of the Hosts’ network structure, or to prevent damage to the Hosts’ network, the software or the data stored on such servers.
Should any account require termination, 1Eighty Design will retain the right to recover from You losses, damages, indemnity, defense costs, expert costs, reasonable collection costs and/or reasonable attorney’s fees or other costs of any kind as may be applicable under Indiana Law.
INFORMATION USAGE AND COMMUNICATIONS
You hereby consent and agree that any information 1Eighty Design may collect from You and/or maintain with respect to You, including, but not limited to, Your account information, dates of service, billing records, usage statistics, site statistics, services purchased, domain name purchases, correspondence to or from 1Eighty Design concerning You or Your account, or other information which in 1Eighty Design’s sole judgment is reasonable, 1Eighty Design may disclose such information to public or private third parties as applicable law may require or permit. The decision as to whether to disclose such information as may be required, permitted or otherwise reasonable shall be within the sole discretion of 1Eighty Design and may include, but shall not be limited to: (1) compliance with court order, subpoena or other request of any State or Federal government; (2) compliance with the Electronic Communications Decency Act; or (3) compliance with the Digital Millennium Copyright Act.
During and after the Term set forth herein, You agree to receive periodic emails from 1Eighty Design in regards to 1Eighty Design or partner products, services, Your account, and system conditions, terms and conditions changes, updates and/or schedules.
You agree during the Term set forth herein to maintain true and accurate account information on file with 1Eighty Design, specifically including Your Name, address, E-mail address, telephone number, billing information and any other account information requested at any time during the sign up process. You further agree that the failure to provide or maintain such accurate information is a material breach of these terms and conditions and may subject Your account to suspension and/or termination.
Any notice under this agreement shall be given by 1Eighty Design to You via E-mail at the address initially provided by You to 1Eighty Design or as updated in writing by You to 1Eighty Design. Notice to You at this address is deemed sufficient regardless of Your receipt of such an E-mail.
Any notice by You to 1Eighty Design shall be made in writing and sent via United States Mail to the following Address:
1Eighty Design, LLC
PO Box 1303
Warsaw, IN 46581 USA
1Eighty Design, pursuant to 17 U.S.C. Section 512, as amended by Title II of the Digital Millennium Copyright Act (the “Act”), and pursuant to any applicable regulations governing patents and/or trademarks, reserves the right to terminate Your account if 1Eighty Design determines, in its sole discretion, that You are involved in infringing activity that may be in violation of the foregoing, including, without limitation, alleged acts of first-time or repeat infringement, regardless of whether the material or activity is ultimately determined to be infringing.
DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE
It is 1Eighty Design’s policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. If You are a copyright owner or an agent thereof, and You believe that any content hosted by 1Eighty Design infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”). All claims of infringement must be submitted to 1Eighty Design in a written complaint to the following address:
1Eighty Design, LLC
PO Box 1303
Warsaw, IN 46581 USA
WARRANTIES AND LIMITATIONS
1Eighty Design makes every reasonable effort to maintain operation of the 1Eighty Design Web Site service. However, because many events and circumstances are beyond the control of 1Eighty Design, 1Eighty Design does not in any way warrant or otherwise guarantee the availability of the 1Eighty Design Web Site, system or Hosts’ servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues, whether due to the active or passive negligence of 1Eighty Design.
THE 1EIGHTY DESIGN SERVICE IS PROVIDED TO YOU ON AN “AS IS” BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. 1EIGHTY DESIGN SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
In general, 1Eighty Design has no control over information contained on the Internet. Information obtained by You from the Internet may be inaccurate, offensive or in some cases even illegal. 1Eighty Design accepts no responsibility for any information which You receive from the Internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that You obtain from the Internet, as well as the reputation of the individuals with whom You may deal. 1Eighty Design provides no warranty, express or implied, for any goods or services which You obtain over the Internet, nor for the compatibility of any such services with the 1Eighty Design system.
You specifically hereby waive any claim for damages or costs of any kind whatsoever, whether direct, indirect, special, exemplary, punitive, incidental or consequential, and including, without limitation, loss of profits or loss of business or business interruption as the result of any action taken in response to any claim of copyright infringement, without regard to whether or not the material claimed to have been infringing is later found to be infringing.
THE TOTAL SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU AS THE RESULT OF ANY BREACH OF THESE TERMS AND CONDITIONS, NEGLIGENCE, OR ANY ACTION OR FAILURE TO ACT BY 1EIGHTY DESIGN, WHETHER INTENTIONAL OR OTHERWISE, SHALL BE LIMITED TO THE TOTAL AMOUNT OF SERVICE FEES PAID BY YOU TO 1EIGHTY DESIGN IN THE THREE MONTHS IMMEDIATELY PROCEEDING ANY CLAIM OR ALLEGATION BY YOU OF ENTITLEMENT TO SUCH REMEDY. IN NO EVENT SHALL 1EIGHTY DESIGN BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS OR BUSINESS INTERRUPTION AS THE RESULT OF ANY SUCH ACTION OR INACTION WITHOUT REGARD TO THE LIKELIHOOD OF ANY SUCH DAMAGES.
THIRD PARTY LINKS
1Eighty Design may link to sites operated by third parties.1Eighty Design has no control over these linked sites which operate under their own terms and privacy policies. These sites are only for your convenience and should be accessed at your own risk.
You agree to fully defend, indemnify, and hold harmless 1Eighty Design from and against any and all third party claims, causes of action, demands, costs, damages, including direct, indirect, or consequential damages, and specifically including reasonable attorney’s fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid by 1Eighty Design or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to Your use of the 1Eighty Design Web Site or services, or any portion thereof. Choice of counsel remains exclusively that of 1Eighty Design.
You agree that upon the assignment of Your user ID and password that You will maintain the confidentiality of Your account information and assume all responsibility of and from any loss, theft or other destruction of any data as the result of any access to Your account via the use of Your user ID. You further agree to defend, indemnify, and hold harmless 1Eighty Design of and from any and all third party claims, causes of action, demands, costs, damages, including direct, indirect, and consequential damages, and specifically including reasonable attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid by 1Eighty Design or not) as the result of any claim for damages in any way related to the disclosure of Your confidential User ID and Password information. Choice of counsel remains exclusively that of 1Eighty Design.
1Eighty Design shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, acts of terrorism, governmental requirements, and/or any other matters beyond the control of 1Eighty Design.
Your rights hereunder may be assigned only upon prior written notice by you to 1Eighty Design and expressly approval in writing by 1Eighty Design. 1Eighty Design may assign its rights hereunder to any person or entity who shall become a principal owner or shareholder of 1Eighty Design, or to any successor in interest. Any other attempted transfer or assignment of rights hereunder shall be null and void.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
CHOICE OF LAW
This Agreement shall be interpreted under the laws of the State of Indiana without regard to any conflict of laws provisions. Any action between the parties to enforce these terms and conditions or to enforce any written contract or agreement between You and 1Eighty Design, shall be brought in the state courts of Indiana, County of Kosciusko. Both You and 1Eighty Design hereby consent to jurisdiction in such courts, agree to accept service by mail, and hereby waive any defense of any kind related to jurisdiction or venue.
Notwithstanding any other provision of this agreement, 1Eighty Design is not Your agent, partner or joint venturer in any respect.
1Eighty Design may, without advance notice, amend these terms and conditions from time to time, and will do so by posting such amended terms and conditions on the 1Eighty Design Web Site. Each and every such amendment shall be become effective immediately upon such posting for all pre-existing and future accounts.