HMG Client Terms and Conditions

For purposes of these Terms and Conditions ("Terms"), "HMG", "we" or "our" refers to Horizon Marketing Group, Inc. and "Client", "you" or "your" refers to your company. Please read these Terms carefully as they, along with your service agreement(s) with HMG, govern your relationship with HMG. By engaging HMG to provide services to you, you agree to be legally bound by these Terms and Conditions. HMG reserves the right to change or modify these Terms and Conditions at any time and in its sole discretion by posting the amended Terms on our website at http://hmgcompany.com/terms.html Unless otherwise specified, any changes or modifications will be effective immediately upon posting on the website and your continued use of HMG's services after such time will constitute your acceptance of such changes or modifications.

  1. Point of Contact: HMG will need at least one point of contact for day-to-day communications. This person will be responsible for gathering of data, files, or content required to complete the project, attending conference calls or meetings at key intervals with HMG and coordinating internal communications with your team regarding the status of the project. They will receive all communications from your Account Executive at HMG. This person should be authorized to make decisions on your behalf. If that individual is not the final decision maker, we will need the authorized person's contact information and will contact them at appropriate stages of the project for review and approval.

  2. Deadlines: Client is responsible for meeting time deadline(s) associated with HMG's performance of the deliverables. HMG is not responsible for late deliverables resulting from Client's failure to meet time deadlines specified by HMG, which may include deadlines for providing content and/or approvals.

  3. Content: Unless otherwise specifically stated as a part of the deliverables for this agreement, Client is responsible for providing all content necessary for HMG's performance of the deliverables, including but not limited to written copy, logos, photographs, video, music, fonts and/or other materials. The pricing reflected in your services agreement with HMG assumes that content will be readily provided to HMG in a manner specified by HMG, in acceptable format(s), and that HMG will not be required to pull content from other Client website(s), follow up with prior vendors of Client, find content from third party sources or otherwise spend time obtaining, aggregating or organizing content on Client's behalf. In situations where HMG must locate, aggregate or organize content on Client's behalf, Client will be charged for such additional project management time at a rate of $150/hour.

    Even where HMG has agreed to design a website, web, mobile or social media application, email template, etc., such designs may require the purchase or license of fonts, photographs, background music, or other items from a third party. The cost of same is NOT included in the pricing set forth in your services agreement with HMG. Client may either purchase or license those items on their own or HMG may purchase/license them on Client's behalf. Client and HMG should consult at the outset of the project to discuss Client's preference in this regard, estimated pricing and purchase/licensing options. Third party content including but not limited to fonts, photos, graphics, videos, and illustrations that Client (or HMG on behalf of Client) licenses from a third party to be placed in designs created by HMG for Client will not be owned by Client. Client should not use such content in other items, such as print materials or promotional items, or otherwise use such content inconsistent with the third party's terms of licensing such use. Upon request, HMG shall provide Client with a listing of third party content used in the deliverables and the source(s) of such content so that Client may review the licensing requirements associated with that content.

    Where Client is providing content, Client shall be responsible for obtaining all required licenses, permissions and/or approvals for use of such content. Client warrants and agrees that where it has provided content to HMG, it has full legal authority to use such content and/or has obtained the required licenses, permissions, and/or approvals. Further, client assumes responsibility for the accuracy, spelling and truthfulness of all content it provides to HMG.

    Logos, graphics, and/or photographic images should be supplied in an electronic acceptable format, such as high-resolution .jpeg, .eps and .tif or vector-based .eps or .ai. Acceptable text formats are .doc or ASCII. Photo scans are typically charged at $25 per scan. Photo retouching, manipulation, or illustration is billed at the rate of $150 per hour. This pricing may vary based upon the original source material and the required output.

    Should Client require HMG to write copy for inclusion in the deliverables, the cost is $150 per hour. In the case where Client is responsible for but has failed to provide written content to HMG to allow it to perform the deliverables under this agreement and HMG therefore must obtain written content from other sources, HMG disclaims any warranties over the accuracy and reliability of any such information. Client warrants and agrees that it shall be solely responsible for reviewing the accuracy of all written content provided by HMG in connection with its provision of the deliverables.

  4. Design What is Included/Not Included: Unless otherwise specifically stated as a part of the deliverables in this Agreement, if Client has engaged HMG to create a website, web application or mobile site, HMG will provide two designs for Client to choose from for the home page of the site/application. Additional designs can be provided at additional cost. Once Client has selected the design it would like to use as the home page, it will be permitted two rounds of revisions to that design. Once those revisions have been made, HMG will design one subpage template that will follow the same look and feel of the home page. Client will be permitted two rounds of revisions to that subpage template. Please note that the same subpage template will be used for all of the other pages of the website. Should Client wish to have more than one subpage template design to choose from and/or wish to use different subpage template designs on different pages of the site, Client will be charged an the rate of $150/hour for such additional designs. Also, please note that the design of the layout/placement of the content in each of the subpages in the website is not included in the cost of the project. Rather, Client will be asked to advise where they wish to place images, content, etc. within each of the subpages. Should Client require assistance in designing a proper aesthetic for each of the subpages this will be at an additional charge of $150/hour. Finally, alterations to or resizing of graphics for placement in the subpages will also be at an additional charge of $150/hour.

  5. Ownership by HMG:

    Other than Client-provided content and website or email designs, HMG shall retain all copyright, patent, trade secret and other intellectual property rights HMG may have in anything created or developed by HMG for Client ("Work Product"). HMG grants Client a non-transferable, non-exclusive license to use the work product. The license is conditioned upon full payment of the compensation due to HMG under the service agreement with Client.

    Subject to an hourly charge for assembling and preparing the materials for delivery, and at the request of Client, HMG can provide a PSD (Photoshop file) or other file format of any design it has created for Client and/or HTML files. Should Client require any of the above to be placed on a disc (as opposed to delivered electronically), Client shall also be responsible for any applicable sales tax.

    Client shall not own any third party licensed commercial components that are embedded in the source code of the Work Product. The owners of these components shall retain ownership of these items in accordance with their Terms and Conditions, licensing agreements, or other applicable agreements. Upon request, HMG shall provide Client with a listing of third party components used in the deliverables and the source(s) of such components.

  6. Changing Hosts: Should Client wish to move its website/web application to another server/host from the original hosting source, Client will be provided FTP access to port its site over; however, Client should be advised that sites may not port over to certain servers and/or the site may lose certain functionalities on certain servers. HMG is not responsible for same. Should the site require additional programming to port to another server/host, or should HMG be required to engage in extensive consulting to assist in the migration, HMG will bill Client for same at the rate of $150 per hour. Should Client require any of the above to be placed on a disc (as opposed to delivered electronically), Client shall also be responsible for any applicable sales tax.

  7. For Peer360 and WebLetter Customers: The following items will be automatically purged from your account and irretrievable on the first day of the month two (2) years after the most recent broadcast to which the items relate: documents, graphics, photos, written content, video, and hyperlinks. Also any documents, videos, graphics or broadcasts not published within two years of creation will also be deleted. Example: an email newsletter is broadcast on February 14, 2013. The items in that broadcast will be deleted on February 1, 2015. If a client wishes that HMG not purge individual graphics or documents after two (2) years it must mark the content as "permanent" in the Peer360 system. Clients that want Peer360 to store all their broadcasts and content longer than the two-year limit must advise their Account Executive prior to the deletion date. The cost for storage beyond 2 years will be $500/year (partial years will not be pro-rated). NOTE: email addresses, names, email status and custom field data will not be purged as long as Client's account is active.

  8. Taxes: Client will pay, reimburse, and/or hold HMG harmless for all sales, use, transfer, privilege, tariffs, excise, and all other taxes and duties (other than as related to HMG's income), whether international, national, state, or local (however designated), which are levied or imposed by reason of the performance of the deliverables.

  9. Payment: Unless otherwise set forth above, all ongoing monthly program costs will be billed on the first day of the month for that month's services. Thirty (30) days written notice is required to terminate any monthly program costs. Client will be billed for the full month of services if the termination date occurs after the first of the month (e.g., Client gives notice on January 15th of desire to terminate; Client will be billed for January and February). All payments made to HMG shall be in U.S. Dollars in the form of company check, cashier's check, electronic wire transfer, and/or credit card payment. Payments not made within 60 days of the date of invoice may be subject to late charges equal to the lesser of i) one and one-half percent (1.5%) per month of the overdue amount; or ii) the maximum amount permitted under applicable law. If Client fails to timely pay the amounts due during the development or delivery of the deliverables pursuant to this paragraph and/or the payment terms set forth in the Agreement above, HMG retains the right to stop work and/or suspend services after five (5) days' written notice (email communication sufficient) until payment is made. Further, HMG shall retain full ownership over the deliverables (whether completed or not), including but not limited to any programs, source code, design work, email databases, and/or other data created until full payment is received. Client shall reimburse HMG for travel and any related expenses. All out of pocket expenses (if any) will be the responsibility of the client and will be passed along to the client at cost.

  10. Refunds: Refunds of any kind are granted at the sole discretion of HMG and may take the form of money, credit towards future services, and or product license fee credits, or any combination thereof. It is HMG policy to provide refunds at our discretion for some portion of payments received for active projects, which are cancelled by the client prior to completion. HMG retains the right to reconcile any and all time, direct, and indirect expenses related to the cancelled project and refund the balance. Expenses may include but are not limited to project planning hours, client meeting time and actual work product hours logged as well as any project-related expenses.

  11. Limitation of Liability: IN NO EVENT SHALL HMG BE LIABLE TO CLIENT FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA OR LOSSES AS A RESULT OF DISCLOSURE OF USER CONTENT OR OTHER DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH HMG'S PRODUCTS OR SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF HMG EXCEED ANY COMPENSATION PAID BY YOU TO HMG FOR ITS PRODUCTS OR SERVICES.

  12. Disclaimer of Warranty: THE PRODUCTS AND SERVICES ARE PROVIDED on an "AS IS" and "AS AVAILABLE" basis AND HMG EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Notwithstanding the foregoing, HMG does warrant that any programming code developed by HMG as part of its deliverables shall be free of 'bugs' for 90 days after the go live date. For purposes of this paragraph, 'bugs' are defined as programming errors that make the application inoperable and does not include upgrades or enhancements to functionality or graphic design changes. Further, HMG shall have no responsibility to fix any 'bugs' that arise after the go live date where the 'bugs' are the result of changes in a third party component that has been made a part of the deliverables. By way of example, if a web application contains a third party content management system, such as Umbraco, Joomla or Wordpress, and changes to that system result in the inability of the HMG code to properly interact with the system, HMG shall not be responsible for fixing same. Additional programming work may be requested by Client under separate contract at then current billing rates.

  13. Governing Law: This Agreement shall be governed by and construed in accordance with the internal laws of the State of Connecticut and not the principles of conflicts of law thereof. The Parties agree that the venue for any action arising out of this Agreement will be Hartford, Connecticut.

  14. Miscellaneous: If any portion of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity or enforceability of any remaining provisions or the provisions in the service agreement.

V.2 05/23/13

 


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