This services agreement (“Agreement”), sets forth the terms under which Pinevision Inc. a California Corporation (“Pinevision”) shall provide the services to the customer (“Client”).
1.1 “Statement of Work” or “SOW” or “Order Form” means a separate document referencing these Terms and Conditions (Ts & Cs) that is signed by Client and states additional Services to be performed by Pinevision and the fees for such additional Services.
1.2 “Website” means a website produced in the EPAGE system and all included functions and features, including but not limited to, images, text, slideshows, videos, mobile and response designs.
1.3 “Specification” means a separate written description of additional services related to content or functionality of a website. A specification of additional services should be signed and agreed upon by the Client and Pinevision prior to acceptance of the Statement of Work.
1.4 “Production Start Date” means the date at which Pinevision shall begin production of items described in the Statement of Work.
1.5 “Delivery Date” means the date at which the Client will receive access to the website and web services for review and acceptance.
1.6 “Client Acceptance Date” means the date at which the Client shall submit any final adjustments to be made to the delivered website. After Client acceptance, client will receive login information, training for EPAGE, and full responsibility for the website and use of web services is transferred to the Client.
1.7 “Publishing Date” means that the web-solution, as defined in section 6.1 is installed, and live at the Clients domain.
1.8 “Client Data” means all data and information, including but not limited to, images, text, slideshows, videos, mobile and response designs provided by the Client to Pinevision.
1.9 “Services” means the services to be performed by Pinevision as described in an Order Form or a SOW, including both Software Services and Professional Services. Software Services includes cloud-based software. Professional Services includes Pinevision services personnel who perform various service functions as described in an Order Form or Statement of Work.
2. Services - General
2.1 Pinevision shall provide the services as defined by the Statement of Work, and if applicable, the specification.
2.1.1 The Servies provided by Pinevision includes professional services (website deisgn and development, support, training etc.) as well as a cloud-based subscription service.
2.1.2 For Pinevision's subscription service, Pinevision's Service Level Agreemenent apply, which can be accessed at www.pinevision.com/agreements/sla.
2.2 If no delivery date has been defined, the services shall be completed and delivered in a reasonable timeframe, as defined by the scope of work and any other known or unknown circumstances that might affect the delivery date. If a delivery date has been accepted by both Pinevision and the Client, Pinevision will be held liable to deliver the services prior to or on the day of the delivery date.
2.3 The services shall, after acceptance of the Statement of Work, and if applicable, the specification, be further planned and defined in regards to production start date, delivery date, and client acceptance date. The required client data to be provided by the client to Pinevision in order to provide the services shall be defined. Pinevision will set a production start date, and it is the Clients responsibility to notify Pinevision, at least 7 days prior to set production start date, if another production start date is preferred. A new production start date will require the acceptance of Pinevision to be confirmed.
2.4 It is the Client's responsibility to provide Pinevision with all client data needed to perform the services prior to the production start date.
2.5 Any client data not provided to Pinevision prior to production start date is the Client's responsibility to include after the delivery date.
2.6 The services shall be completed in joint consultation between the Client and Pinevision. Joint consultation includes continuous contact between the parties. The Client is responsible to within a timely manner notify Pinevision of any objections or other concerns in regards to the services or website.
2.7 The Client is responsible, unless otherwise agreed upon, for coordination and organization of any client data or client information required by Pinevision to deliver the services set forth in the statement of work.
2.8 Pinevision reserves the right to use any employee or contractor to perform the services set forth in the statement or work.
2.9 Pinevision is not liable to perform any services that are not defined in the statement of work, and if applicable, the specification. If any additional services, not defined in the statement of work or specification, is required to deliver the website, Pinevision is responsible for notifying the Client in a timely manner.
2.10 If additional services are required, this shall be agreed upon by the Client and Pinevision, at which point the Client owns the right to amend the statement of work and/or the specification. If a delivery date has been defined, Pinevision owns the right to adjust the delivery date to account for the additional services. Fees for any additional services shall be agreed upon by the Client and Pinevision and included in the amendment to the statement of work or specification.
3. Services - Prior to Production Start Date
3.1 After completed production planning as defined in section 2.3 the client shall provide Pinevision with the client data needed to complete the services.
3.2 If the Client is not able to provide the required material within the planned time frame and wishes to extend the production start date, the client must notify Pinevision at least seven (7) days prior to set production start date. A new production start date will require the acceptance of Pinevision to be confirmed.
3.3 Client data shall be provided by the Client according to instructions provided by Pinevision.
4. Services - Production
4.1 Standard Website
4.1.1 Pinevision is responsible for designing the website's graphic layout, structure, and navigation within five (5) days following the production start date. Client is responsible for ensuring that all client data is available at the start of production. After review, the client may, if necessary, submit a written request for revision to Pinevision.
4.1.2 Within the first ten (10) days following the production start date Pinevision shall complete production, and all client data provided by the client at the start of production shall be included in the final website.
4.2 Premium Website
4.2.1 Pinevision is responsible for designing the website's graphic layout, structure and navigation based on the guidelines given by the customer through the production planning within seven (7) days following the production start date. Client is responsible for ensuring that all client data is available at the start of production. After review, the client may, if necessary, submit a written request for revision to Pinevision.
4.2.2 Within fourteen (14) days following the production start date, any adjustments requested by the Client shall be completed by Pinevision. Customer is responsible for the submission of a written review to Pinevision for any changes no later than ten (10) days following the production start date.
4.2.3 Within eighteen (18) days following the production start date, Pinevision shall complete production, and all client data provided by the client at the start of production shall be included in the final website.
4.3 Migration of Website
4.3.1 Pinevision is responsible for designing the website's graphic layout, structure, and navigation within five (5) days following the production start date. No additional client data (except data available on the Clients current website) is added to the production.
4.3.2 Within the first ten (10) days following the production start date Pinevision shall complete production, and all client data provided by the client at the start of production shall be included in the final website.
5. Services - Delivery and Acceptance
5.1 The client shall check that the web service complies with the statement of work and any specification
during a delivery test-period comprising, unless otherwise stated in the schedule, seven (7) days after the Client Acceptance Date. The customer must approve the web service as fulfilled and confirm that the web service does not differ from what can be considered the result of professionally executed assignments.
5.2 Pinevision is not responsible for errors in third party products or delays caused by third parties and related products.
5.3 Client Acceptance Date is the day the web service is approved by the customer, or the login to the service has been sent after delivery date to the customer at the request of the customer, or the delivery period expired without the customer having made a proper note in the minutes acceptance check, or the delivery period has expired and the services defined has not been met due to circumstances defined in section 5.2, or the web service meets the specification after Pinevision has remedied any legitimate remarks provided by the customer, or customer after the expiry of the delivery period without actual acceptance date above, use the web service in its operations without Pinevision's written consent.
6. Services - Publishing
6.1 Pinevision publishes the web service and makes it available on the domain name the customer wishes, provided that the domain name is available or that the customer already owns the rights to domain name.
6.2 Customer is responsible for providing the information needed for Pinevision to publish the web service.
6.3 Training takes place primarily through the educational materials available at Pinevision Website, and if the customer wishes, Pinevision will provide training on the Epage system during one (1).
6.4 Pinevision is entitled to compensation for the work performed if the client needs additional assistance in obtaining the correct information in order to publish the website or the client assistance linking emails, moving emails, backing up old emails, or changing settings in email clients.
7.1 If the Delivery Date has been determined, and the services have not been completed by Pinevision by the determined Deliver Date, the services will be considered delayed.
7.2 If Pinevision is responsible for the delay, the client is entitled to compensation in the form of a 2% discount on the price stated in the statement of work for each seven (7) day period after the original Delivery Date. The discount cannot exceed 10% of the total website design/development price stated in the statement of work.
7.3 If the client is responsible for the delay, Pinevision owns the right to move the Delivery Date to a time
which, having regard to the circumstances, is justified.
7.4 In the event of delay pursuant to section 7.1, the affected party shall have the right to terminate the agreement if the delay has lasted for more than eight (8) weeks past the original Delivery Date.
7.5 If the client is responsible for the delay, and Pinevision has terminated the contract pursuant to section 7.4, Pinevision has the right to compensation from the Client for work performed and costs incurred.
7.6 If Pinevision is responsible for the delay,and the Client has terminated the contract pursuant to section 7.4, the Client owns the right not to pay compensation for ½ website design/development of the price defined in the Statement of Work.
7.7 Unless otherwise agreed upon, if Production has not started within three (3) months from the date at which the Statement of Work was signed by the Client, both parties have the right to cancel the agreement. If the client is responsible for the delay, Pinevision is entitled to compensation for ½ of the total website design/development price defined in the Statement of Work.
8. Responsibility for Failure or Deviations from Agreement
8.1 It is the duty of the Client to immediately carry our tests of the web service as of publication following the Publishing Date. The Client shall check whether the web service complies with the contracted services defined in the Statement of Work and if applicable, the specification. The Client shall notify Pinevision of any failures or deviations from the services defined in the Statement of Work within a reasonable timeframe. If the Client does not notify Pinevision within three (3) months following the Publishing Date, Pinevision is not responsible to rectify the failures or deviations. Pinevision will not be held responsible to rectify any failures that lack significance for the use of the web service.
8.2 If the Client has notified Pinevision of any failures or deviations from the services defined in the Statement of Work and if applicable, the specification, within a reasonable timeframe and the failure or deviation is due to Pinevision, it is the responsibility of Pinevision to with the urgency which, in the circumstances, is judged to be necessary, but no more than one (1) month, rectify the failure or, if possible, provide the Client instructions for circumvention of the failure or deviation.
8.3 If rectification has not been made within the time specified in 8.2, the Client is entitled to compensation in the form of a 2% discount on the website design/development price stated in the statement of work for each seven (7) day period. The discount cannot exceed 10% of the total website design/development price stated in the statement of work.
8.4 If a failure is of essential importance to the Client and can not be rectified, the Client owns the right to cancel the Agreement and not to pay compensation for 1/3 of the price defined in the Statement of Work.
8.5 If in the process of rectifying failures or deviations it is found that the failures or deviations is due to the Client or anyone other than Pinevision, Pinevision owns the right to compensation according to the applicable price list for executed work on rectifying the error.
9. Limitation of Liability
9.1 In no event shall either party be liable to the other party or to any third party for any cause related to or arising out of this Agreement, whether in an action based on a contract, tort (including negligence and strict liability) or any other legal theory, however arising, for any damages based on use or access, interruption, delay or inability to use the service, lost revenues or profits, delays, interruption or loss of services, business or goodwill, loss or corruption of data, loss resulting from system or system service failure, malfunction or shutdown, failure to accurately transfer, read or transmit information, failure to update or provide correct information, system incompatibility or provision of incorrect compatibility information or breaches in system security or for any indirect, special, incidental, or consequential damages, whether or not such damages were foreseeable or a party has been advised of the possibility of such damages. notwithstanding any failure of essential purpose of any limited remedy, Pinevisions maximum liability shall not exceed the aggregate amounts paid or payable to Pinevision pursuant to this agreement in the preceding six (6) month period.
9.2 Except for actions for non-payment or breach of either party’s intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than two (2) years after the cause of action has accrued and upon the expiration of such time limit, any such claim and all respective rights related to the claim lapse.
10.1 Both parties acknowledge that in the course of performance hereunder, they may have access to confidential or proprietary information of the other party. Both parties agree to use the Confidential Information only as necessary to fulfill their respective obligations under this Agreement and agree to hold such Confidential Information in confidence, except such disclosure as may be required by law. Each party agrees that it will treat all Confidential Information with at least the same degree of care as it accords to its own Confidential Information.
11. Proprietary Rights
11.1 Reservation of Rights
11.1.1 Pinevision and its suppliers and/or licensors own the Software, the Services and any underlying infrastructure, including, without limitation, (a) Pinevision logos, Pinevisions’s domain names, the product and service names associated with the Services, and other trademarks and service marks, (b) certain audio and visual information, documents, software and other works of authorship, (c) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions, data, images, text, content, APIs, tools and other tangible or intangible technical material or information provided in conjunction with the Services and (d) any and all updates, enhancements, bug fixes, patches or any similar changes that may be made generally commercially available to clients of the Services from time to time.
11.2 Client Data
11.2.1 Client retains all right, title and interest in and to Client Data. By adding, creating, installing, uploading, or transferring Client Data, Client grants Pinevision and its subcontractors a non-exclusive, worldwide, royalty-free, paid-up, irrevocable, sub-licensable and transferable right and license to host, cache, copy, and display Client Data in any form, medium, or technology now known or later developed during the Term and any Renewal Period for the purpose of and in conjunction with providing the Services. Client agrees not to send any personally identifiable information to Pinevision and further agrees that Pinevision shall have no liability for Client’s breach of the foregoing.
11.2.2 Client represents and warrants that (i) Client owns or has sufficient legal right to the intellectual property rights in the Client Data, (ii) Client has and will keep in effect during Client’s use of the Services, all such licenses, approvals, consents and permissions necessary to provide the Client Data to Pinevision and that Client Data does not violate applicable law or the rights of any third party. Client agrees to hold Pinevision harmless from any reasonable costs and other amounts that Pinevision may incur from Client’s breach of any of the foregoing.
11.2.3 Pinevision has the right, but not the obligation, to remove any Client Data that may, in Pinevision’s sole discretion, violate this Agreement or that is otherwise objectionable.
11.2.4 Client acknowledges and agrees that, except as expressly set forth herein, Pinevision is not responsible in any manner for Client Data, and that Client is solely responsible to retain adequate back-ups of Client Data and assumes all risk related to the transmission of Client Data to the Services. In addition, Client acknowledges that, notwithstanding Pinevisions’s security precautions, Client’s use of, or connection to, the Internet provides the opportunity for unauthorized third parties to illegally gain access to the Services and Client Data. Pinevision cannot and does not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet, or otherwise, or that any security precautions taken by Pinevisions will be adequate or sufficient.
12. Fees and Payment
12.1 Client shall pay all fees as specified in this Agreement or Statement of Work in U.S. Dollars. Except as otherwise provided herein, fees are non-cancellable and non-refundable.
12.2 Fees for the Services are due upon receipt of invoice and payable in U.S. dollars within thirty (30) days of the invoice date without deduction of any kind. Any late payments will be subject to a service charge equal to 2% per month of the amount due or the maximum amount allowed by law, whichever is less.
12.3 The amounts payable to Pinevision are exclusive of any sales, use, excise, value added, import, business, service, goods and services, consumption, withholding or other applicable taxes, tariffs or duties (“Taxes”). Client is solely responsible for payment of all Taxes except for any taxes based solely on Pinevision’s net income.
13. Term and Termination
13.1 Unless sooner terminated pursuant to the terms hereof, this Agreement shall commence on the Effective Date and shall continue for a period of one (1) year. The Agreement shall automatically renew for additional, successive one (1) year periods unless otherwise terminated by either party by providing a written notice to the other party at least sixty (60) days prior to the end of the then-current term.
14. Changes to this Service Agreement
14.1 Pinevision has the right to make changes to these terms, with effect from 30 days after publication.