These Terms of Service ("TOS") are legally binding on all Clients of Open House Advertising (OHA) and (Listbums, LLC) including all of its divisions and subsidiaries.
1. Acceptance of Terms By using or engaging in OHA’s services, including but not limited to, submission of content to OHA, and payment or authorization of payment, Client agrees to be bound by these terms and conditions. Client also agrees that Client's electronic acceptance of the TOS shall have the same force and effect as if Client had agreed to the TOS in writing.
OHA provides its services to Client subject to the following TOS, which may be updated from time to time without notice. Failure to comply with the TOS may result in account termination or suspension. By using OHA’s services, Client agrees to (and hereby signs) the most current version of the TOS. If Client does not expressly reject the TOS at the point of sale, Client agrees to (and hereby signs) the TOS and OHA is instructed to commence work on Client's website as if Client had expressly accepted the TOS.
2. Description of Services OHA designs and hosts websites, provides Internet-based marketing services, and provides other website-related services, including, but not limited to, support and modification of websites, e-commerce, flash, web-traffic reporting, database development, easy interface for updating the website, IDX, email accounts and additional website-related services ("Services"). Client understands that OHA’s services may include certain communications from OHA such as advertisements, notices, service announcements and newsletters. Client is responsible for obtaining access to OHA’s services that may involve third party fees (including but not limited to, ISP, merchant accounts and gateways). Client also is responsible for all equipment and software necessary to access OHA’s services.
3. Electronic Delivery Policy OHA is a website-related business and communicates with its Clients electronically. When a Client accepts the TOS, Client consents to receive electronically from OHA any notices, progress reports, agreements, disclosures, or other communications (Notices). Client agrees that OHA may send Notices in either of the following ways: 1) to the email address provided by Client to OHA at the time of sale; or 2) to the new email address account Client establishes through OHA. Client agrees to check the designated email addresses regularly for Notices. All Notices from OHA are effective at the time they are sent by OHA, regardless of whether the Notice is read or received by Client.
4. Privacy Policy Personal data and certain other information about the Client are subject to OHA’s Privacy Policy. By using OHA’s services Client also agrees to the most current version of OHA’s Privacy Policy.
5. Confidential Information Client acknowledges and agrees that any information or ideas submitted to OHA by any means may be used by OHA without compensation or liability to Client for any purpose whatsoever, including but not limited to, enhancing its Services, developing websites, databases, e-commerce and developing, manufacturing and marketing other products. This provision does not apply to Client content or to personal information that is subject to OHA’s Privacy Policy.
Client herby gives permission to OHA to use samples or links to Client's website designed or marketed by OHA for marketing and advertising purposes, including but not limited to, use in OHA’s online portfolio and social media websites.
6. Call Monitoring and Recording Privacy Statement As part of OHA’s commitment to providing its Clients with the best possible service, OHA may monitor and record telephone calls to and from OHA. OHA also may archive recorded voice mail messages. OHA records telephone calls for training purposes, to improve customer service, and to ensure an accurate record of Client calls, which may be needed to support transactions that take place over the telephone. OHA undertakes such actions in order to enable it to identify how to better serve its Clients.
7. Unacceptable Practices As OHA strives to offer the very best Services, there are certain guidelines and policies that must govern OHA’s efforts and relationships with its Clients. Practices that are in violation of these guidelines and policies are forbidden and will result in the immediate termination of OHA’s Services. Client acknowledges and agrees that OHA has sole discretion over decisions regarding compliance with these guidelines and policies. Unacceptable practices include, but are not limited to:
As a OHA Client, you agree to conduct your business in a legal and professional manner. As a OHA Client, you acknowledge and agree that all information, data, text, software, music, sound, photographs, video, messages and other material (Content) on Client's website is the sole responsibility of Client. Client is fully responsible for all website content and agrees to hold OHA harmless in the event of third parties' legal issues brought against Client for Client's business practices. OHA retains the right to terminate any accounts that are in violation of the letter or spirit of this TOS. At its sole discretion and at any time, OHA may discontinue providing Services, or any part thereof, with or without notice. If an account is terminated by OHA for a TOS violation, Client is not eligible for a full refund and any refund is subject to the Termination/Cancellation of Services Policy.
As a OHA Client you may have access to editing tools for your website. Client may edit, add, or delete content to or from the website at anytime. Accordingly, OHA may or may not pre-screen content. OHA shall have the right, but not the obligation, to pre-screen and refuse or remove any content at its sole discretion. Client agrees that Client bears all risks associated with the use of all content, whether edited or written by OHA, including any reliance upon accuracy, usefulness or completeness.
Client acknowledges that OHA may access, preserve, and disclose Client's account information and content if required to do so by law or in a good-faith belief that such access, preservation, or disclosure is reasonably necessary to comply with legal processes, enforce the TOS, provide customer service or protect the rights, property, or safety of OHA and the public.
9. International Use Recognizing the global nature of the Internet, Client agrees to comply with all local rules regarding online conduct and acceptable content. Specifically, Client agrees to comply with all laws regarding the transmission of technical data exported from the United States, or the country in which Client resides and/or transacts business.
10. Interstate Communications Client acknowledges that by using OHA’s Services Client will be causing communications to be sent through OHA’s computer networks, which may be located throughout the United States. Due to the nature of electronic communications, even communications that seem to be intrastate can result in the transmission of interstate communications. Client acknowledges that use of OHA’s services results in interstate data transmissions.
11. Website Construction Procedure Where applicable, with help and input from Client, OHA will prepare the appropriate design and work with the content provided by Client for development of the website. Client must submit content to the design department before site construction begins on the custom website. Client must submit content to OHA using the RFP on www.ohadesigns.com. The client by signing up for our product must click “I have read and agree to the TOS” After content is submitted by Client, the website is developed according to the Statement of Work if necessary. Prior to the website being taken live, Client will receive a missing information notification if content is incomplete. Client will then have five (5) business days to submit missing or incomplete content. If complete content is not received, the website will be taken live "as-is". If the website is taken live without all of the pages completed due to incomplete content, those pages may be banked and developed in the future using Client's design time.
The design and content layout are completed by the designer and presented to Client for approval. After Client approves the website, the website will go live. OHA may review the text before the website goes live to correct any possible errors. OHA is not liable for the accuracy of information, typing or spelling errors in any of the content approved by Client and published on the website. Client will be notified by email that the website is live.
Client understands, agrees, and acknowledges that OHA does not guarantee a time frame for completion of ANY website. A website cannot be completed without submission of complete content, design approvals, and participation from Client. If Client continues submitting additional content throughout the design process, the design time frame is increased. If Client does not submit complete content and OHA is not able to start or complete the custom website design, Client still is responsible for and agrees to pay all fees incurred, including, but not limited to, set-up, enhancement, and monthly hosting charges that begin accruing from date of sale. If Client's website requires custom programming, functionality, flash, e-commerce, IDX, or the use of a database, the overall development time will be extended.
Client is provided with a placeholder immediately after sale. Upon request, Client also will be provided with an optional "welcome website" shortly after the initial sale. The welcome website is a temporary website Client can modify and direct customers to while the website is being built. Client may choose not to have a welcome website.
12. Progress Reports OHA shall contact or meet with Client on a mutually acceptable schedule to report all tasks completed, problems encountered, and recommended changes relating to the development and testing of the website. OHA shall inform Client promptly by telephone or e-mail upon discovery of any event or problem that may delay significantly the development of the design work.
13. Developers Guarantee for Program Use OHA agrees to notify Client of any licensing and/or permissions required for art-generating/driving programs to be used.
14. Changes/Revisions OHA agrees to provide any and all Services, including but not limited to, the design and construction of a website or marketing services, pursuant to the specifications contained in the original terms of sale. Any additions or changes to Services requested by Client that are outside of or beyond the scope of the original terms of sale will be billed to Client at OHA's standard hourly rate ($100/hour), and Client agrees to pay all charges billed for such additions or changes. OHA is not obligated to complete any additions or changes to Services requested by Client that are outside of the scope of work contained in the original terms of sale. If OHA does not agree to the Client's requests for additions or changes to Services, Client still is obligated to pay all fees incurred and due. With respect to the design and construction of a website, Client will be provided two (2) opportunities to alter the proposed web design after delivery of the concept designs by OHA to the Client for review, and two (2) opportunities to alter the proposed web program after all user requirements and functional requirements have been completed by OHA.
15. Testing and Acceptance Procedures OHA will make a good faith effort to test all deliverables thoroughly and make all necessary corrections as a result of such testing prior to sending the deliverables to Client. Upon receipt of the deliverables, Client shall either: (1) accept the deliverables and make the required milestone payment set forth therein; or (2) provide OHA with written or e-mail notification of any corrections Client requires, and a suggested date for completion of required corrections. The suggested date for completion of required corrections shall be reasonable and mutually acceptable to both OHA and Client. OHA and Client shall each designate one representative as the designated person who will send, receive, and accept all deliverables and communications between OHA and Client. Neither OHA nor Client shall have any obligation to consider for approval, or respond to, communication, deliverables, or materials submitted by any person other than the designated person. Both OHA and Client each have the right to change its designated person upon two (2) days notice to the other.
16. Client Approval Client is responsible for testing and approving the functionality of all Services, including but not limited to websites and marketing services, upon OHA's request and notification that the Services and/or website or marketing services have been completed. Client's responsibility includes, but is not limited to, testing the functionality of all Services, website pages, databases, e-commerce stores, payment functions, galleries, forums, etc. Upon Client's approval of the Services and/or website to go live, Client agrees and acknowledges that Services have been rendered by OHA and the functionality of the website has been tested and approved by Client.
Client acknowledges and agrees that if Client does not respond within five (5) business days to OHA's request for approval and notification that the Services and/or website have been completed, the Services and/or website, along with the functionality of the Services and/or website and services rendered, will be deemed to be approved by the Client, and the Services and/or website will be taken live "as-is".
Client acknowledges and agrees that if Client does not respond to requests by OHA for missing or incomplete information, a final notification and/or request will be sent to Client. If Client does not respond within five (5) business days to OHA's notification or requests for missing information, the Services and/or website, along with the functionality of the Services and/or website and the services rendered, will be deemed to be approved by the Client, and the Services and/or website will be taken live with the missing or incomplete information "as-is" or "under construction".
17. Warranty Period and Website and Online Marketing Maintenance OHA agrees to provide Client with reasonable technical support and assistance to maintain and update the Services and/or website during a warranty period of thirty (30) days after publishing the Services and/or website on its final domain name ("Warranty Period"). Such technical support and assistance will be provided at no charge to Client for up to a total of two (2) hours. For technical support and assistance provided to Client by OHA beyond two (2) hours, Client agrees to pay OHA at its standard hourly rates ($100/hour). After the expiration of the Warranty Period, Client may enter into a new agreement with OHA for Services and/or website maintenance ("Maintenance Agreement") wherein OHA agrees to provide reasonable technical support and assistance to Client to maintain and update the Services and/or website on the Internet for an agreed upon hourly fee. Any such fee will be due and payable when billed pursuant to the TOS. Such maintenance shall include correcting any errors or any failure of the Services and/or website to conform to the specifications and the development of enhancements to the originally contracted project.
18. Enhancements If Client enters into a Maintenance Agreement with OHA, Client agrees that if Client wishes to modify and/or enhance the Services and/or website, Client will give OHA the option to submit a bid or proposal to perform such modifications and/or enhancements prior to accepting or soliciting any competing bids or proposals.
19. Technical Support OHA's technical support department can be contacted at info@openhouseadvertising.com. For any concerns with Client email accounts or any problems with hosting or functionality of the Services and/or website after the Services and/or website are live.
If Client uses OHA's technical support services, including but not limited to screen share sessions, Client acknowledges and understands that OHA does not warranty that technical support services will meet Client's requirements or be error free. (See Disclaimer of Warranties and Limitation of Liabilities.)
20. Customer Service OHA strives to offer the best service available. Customer service complaints or concerns should be emailed to info@openhouseadvertising.com.
21. Use and Storage Client acknowledges that OHA may establish general guidelines and limits concerning the use of OHA's Services and may modify these guidelines at any time. Limits may include but are not restricted to, the maximum number of days that email messages or other content will be retained (90 days), maximum number of email messages that may be sent from or received by an account, the maximum size of any email messages sent and the maximum disk space that will be allotted on OHA's servers on Client's behalf. OHA periodically backs up the websites it hosts. However, Client acknowledges that OHA is not responsible for backing up Client's website and data. Client should seek appropriate backup solutions. Changes made by Client using the editing tool or by OHA may be lost if data loss occurs after a scheduled backup by OHA.
22. Updates to Live Website/Design Time After the website is live, Client may wish to make changes or updates to the website from time to time. Most changes can be made using OHA's online editors. The online editors may not be available for all websites, or all pages of a website. Availability of the online editors is dependent upon the functionality and specifications required for the Client's website. For changes that cannot be made with the editors, Client may use available OHA design hours. These changes must be requested through OHA's Updates Department at info@openhouseadvertising.com. Design hours can be used for modifying the design or layout of the website. Design hours cannot be used toward the completion or modification of databases, custom programming, e-commerce or flash or other enhancements that must be purchased. Changes or updates that exceed the Client's available "design hours" will be billed to the Client at the standard hourly rate.
OHA is not responsible for any changes Client makes to his/her website, or if Client breaks the website. Time required by OHA to repair changes made by Client will be billed to Client at OHA's standard hourly rate if it exceeds available "design / development hours".
23. Domain Names Purchased/Hosting Agreement For most projects OHA does not charge hosting. If required to set up a server, the client will incur full server related costs at no mark up from third party provider. In these cases, monthly hosting is billed every 30 days beginning from the date of sale. Monthly hosting is billed from the date of sale, regardless of the date the website goes live, because hosting costs are incurred immediately. Server space is secured for the developing website and/or for existing Client domain names. In addition, email accounts and support are available from the date of sale and are paid for with monthly hosting fees. Client agrees to a one year hosting commitment with OHA. At the conclusion of the initial one year hosting commitment, Client's commitment will continue on a month-to-month basis and Client will continue to be billed every 30 days.
Domain names purchased by OHA and website designs, databases, stores, or programs created by OHA are the property of OHA until Client has paid all fees including one full year of monthly hosting. At that time ownership of the site and its functionality, and domain name may be transferred to the Client's control upon receipt of the Client's written request. Sham purchases of sites may not be transacted with the intent and/or result of having a site built, then transferring the site to another hosting provider. Clients may buy-out their hosting by paying twelve (12) months of hosting in advance if they wish to transfer the domain name and content to Client's control prior to one year of paid monthly hosting.
Upon transfer of domain and/or website to Client or another service provider, at anytime, Client agrees that OHA has met in full its obligation to Client, and OHA is released of all past and future obligations to the Client. Additional work and/or hosting done for Client must be agreed to in writing and paid for by Client.
Domain names are purchased through a third party service. OHA cannot guarantee the availability of domain names and has no liability for a domain name not being available for purchase after the initial sale. If a domain name is not available for purchase, OHA will assist the Client in selecting and purchasing an alternate domain name. Domain names already owned by the Client remain the property of the Client and renewal of the domain name is the Client's responsibility. The renewal of any domain name transferred to the Client is the responsibility of the Client. In the event a domain name initially was purchased by OHA for or on behalf of a Client, Client is solely responsible for any renewal of the domain name and OHA shall not be responsible or liable for the expiration of any domain name, however selected or purchased. Service and technical support for domain names are provided www.GoDaddy.com, an entity wholly separate and distinct from OHA. Clients should contact info@openhouseadvertising.com with issues concerning domain names.
24. Internet Access Access to Internet will be provided to Client by a separate, third party Internet Service Provider (ISP). Client is solely responsible for entering into and maintaining any contract for service with an ISP. The ISP is not a party to this agreement.
25. Marketing Representations OHA makes no representations as to the marketing of Client's products, services or sales. Client's obligation to pay fees due to OHA are due at time of sale of website design, marketing and hosting services and are not contingent upon Client's marketing of said website. Client is responsible for all marketing of Client's website.
26. Billing Policy The initial Services set-up fee is due and billed in-full at the time of the original sale. (Installment payments may be accepted for the set-up fee only if agreed to in writing pursuant to the original invoice.) Monthly hosting and Services plans, including but not limited to marketing services, are billed and due upon transmission of the invoice. The Client hereby authorizes OHA to renew and bill monthly hosting fees every 30 days, unless the Client cancels in writing after 12 months of monthly hosting fees have been paid.
The amount of the initial Services set-up fee and monthly hosting fees are detailed on the original invoice confirming amounts of sale. Monthly hosting amounts may vary depending upon the hosting package selected by Client.
OHA reserves the right to change prices at any time including monthly hosting amounts and hourly design fees.
OHA accepts payment via credit card and EFT debit from Client's bank account. Upon Client's authorization of payment to OHA via credit card, or EFT debit payment, Client thereby authorizes all recurring monthly hosting and/or additional services fees to be charged to the same method of payment, credit card or EFT account for future charges until such authorization is withdrawn by Client in writing.
The Client may change payment methods including credit card and EFT debit payments with 30 days notice. To change payment methods Client should contact OHA's billing department. Client should not email new billing information for security purposes.
27. Billing Disputes OHA charges up to a $25.00 fee for returned checks and a $200.00 fee to handle unauthorized credit card disputes. If OHA does not receive payment in full when due, OHA may, to the extent permitted by the law of the state of the billing address on file for Client at the time, charge a late fee of up to 1.5% per month (18% per annum), or a flat fee of $5 per month, whichever is greater, on any unpaid balance. OHA may, to the extent permitted by the law of the state of the billing address on file for Client at the time account is sent to a collection agency, also charge Client for any collection agency fees and/or attorney's fees billed to OHA for collecting unpaid amounts due and owing from Client. OHA will not honor limiting notations made by a Client on a check.
If Client wishes to dispute a charge, Client must first contact OHA's billing department and must allow ten (10) business days for a response. To avoid any dispute about Client's attempt to contact OHA, Client must send the request in writing to:
Attn: Billing Department, Open House Advertising, 8520 NE 25th St. Bellevue, WA 98004 Requests may be emailed to info@openhouseadvertising.com. If Client chooses to send request by email, a copy of the request must also be sent by mail as confirmation. If Client initiates a credit card dispute the decision of the credit card company is made through an arbitration process and the decision of the credit card company shall be binding upon Client. (See Arbitration)
28. Termination/Cancellation of Services OHA, at its sole discretion, may terminate its Services and remove and discard any content, for any reason, including and without limitation, for lack of use, or if OHA believes Client has violated the TOS. OHA may also, at its sole discretion and at any time, discontinue providing Services, or any part thereof, with or without notice. Client agrees that any termination of access to OHA's Services under any provision of this TOS may be effected without prior notice and that OHA may deactivate or delete Client's account and all related information files. Client agrees that OHA shall not be liable to Client or any third-party for any termination of Services. Paid accounts that are terminated will not be refunded. In addition, accounts that become 30-days delinquent may be terminated. OHA also reserves the right to discontinue the designing of Client's website at any time, at OHA's sole discretion, with an appropriate refund to the Client. Under no circumstances is the refunded amount to exceed the amount collected by OHA.
If the Client cancels an account before the work is completed or the Services and/or website is live, a cancellation fee is retained per the Cancellation Fee and Refund Policy. Client agrees that all fees incurred and billed prior to the effective date of cancellation are valid and Client agrees to pay. Upon request for termination of Services, the Services will be terminated, including but not limited to the removal of any websites. A back-up copy of the website is not maintained by OHA.
Client agrees to pay all hosting fees and additional services fees owed from the time of sale until the effective date of cancellation, and at a minimum for hosting fees for one year. Transferring a domain name to another provider or non-use of Client's hosting account does not constitute termination of the account. Client must notify OHA in writing or via email to terminate the Services and avoid further monthly hosting charges. It is Client's responsibility to secure confirmation from OHA that the request for termination has been received and no further hosting fees will be billed.
Requests for cancellation of Services should be sent to the following address with a clear written explanation: Attn: Open House Advertising, 8520 NE 25th St. Bellevue, WA 98004.
Requests may be emailed to info@openhouseadvertising.com. If Client chooses to send a request by email, a copy of the request must also be sent by mail as confirmation.
29. Cancellation Effective Date Client may terminate Services with 30-days written notice, after one full year of paid hosting. The effective date of cancellation will be 30-days from the date of OHA's receipt of written notice to terminate or cancel hosting. Any monthly fees scheduled to bill after receipt of written notice to terminate or cancel, but before the effective date of cancellation, are valid and Client agrees to pay such amounts.
If Client has not paid all fees due for Services, such fees are due in full at the time of cancellation and Client authorizes OHA to collect any outstanding fees due, subject to the Cancellation Fee and Refund Policy. Client acknowledges and agrees that any and all pending billing for design fee installments previously agreed to will not be cancelled.
30. Cancellation Fee and Refund Policy All sales are un-refundable. OHA will operate in good faith, and if necessary refund money to those clients whom OHA deems acceptable.
MONTHLY HOSTING – Client agrees that there is NO REFUND of monthly hosting fees or monthly additional services fees incurred or paid by Client after OHA has ordered the service through a third party.
Client agrees that all fees incurred and billed prior to cancellation date are valid and Client agrees to pay. (See Termination).
31. Copyright Protection Client is advised to copyright and protect all final art against duplication or alteration. OHA is not responsible for any Client's copyrightable material.
32. The OHA’s Proprietary Rights Client acknowledges and agrees that OHA's Services may contain proprietary and confidential information that is protected by intellectual- and proprietary-rights laws. Client agrees to not reproduce, duplicate, copy, sell, resell or exploit any portion of OHA's Services or proprietary or confidential information. OHA does not provide direct access, through File Transfer Protocol or other means, to any proprietary technology.
33. Use of Client Information Client hereby agrees that any information or ideas submitted to OHA by any means may be used by OHA without compensation or liability to Client for any purpose whatsoever, including but not limited to, developing websites, databases, e-commerce and developing, manufacturing and marketing other products. This provision does not apply to Client content or to personal information that is subject to OHA's Privacy Policy.
Client herby gives permission to OHA to use samples or links to Client's custom website designed by OHA for marketing and advertising purposes, including but not limited to, use in OHA's online portfolio.
34. Third-Party Services From time to time third parties may offer services to OHA's clients. Use of such third-party services will be at Client's own risk and subject to the terms and conditions of those third parties. Third-party services, including but not limited to, IDX, VOW, and other MLS services, are the responsibility of and shall be paid by Client to its chosen provider. OHA does not represent or warrant that use or access to any third-party services will be compatible, uninterrupted, error free, without defects or that Client will be able to access OHA's services. Client also agrees that OHA is under no obligation to provide Client with any enhancements, updates, or fixes to make OHA's services accessible through any third-party applications.
35. Contract Service Providers OHA may contract with Contract Service Providers to complete a portion, or all, of the Client's custom website and/or Services. The Client agrees not to do business directly with the Contract Service Provider, nor to remit payment to the Contract Service Provider or any OHA employee directly for services. All payments for services rendered must be made directly to OHA. Contract Service Providers are required to enter into employment contracts and to follow company policies and procedures. Contract Service providers are provided with only the information needed to complete the design or development portion of the Client's Services and/or website and do not have access to Client's personal information including payment information.
36. Disclaimer of Warranties CLIENT'S USE OF OHA'S SERVICES IS AT CLIENT'S OWN RISK. OHA'S SERVICES ARE PROVIDED "AS IS". OHA DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. OHA DISCLAIMS ANY WARRANTIES REGARDING OHA'S SERVICES INCLUDING THAT THEY WILL MEET CLIENT'S REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. OHA DISCLAIMS ANY WARRANTIES REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF OHA'S SERVICES, INCLUDING RESULTING SALES AND WEB TRAFFIC. OHA DISCLAIMS ANY WARRANTIES REGARDING THE MARKETING OF CLIENT'S PRODUCTS, SERVICES, SALES, OR WEBSITE. OHA DISCLAIMS ANY WARRANTIES REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED, ADVERTISED OR OBTAINED THROUGH OHA'S SERVICES, OR LINKS PROVIDED BY OHA'S SERVICES, AS WELL AS FOR ANY INFORMATION OR ADVICE PROVIDED BY OHA OR OBTAINED THROUGH LINKS PROVIDED THROUGH OHA'S SERVICES.
CLIENT UNDERSTANDS AND AGREES THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OHA'S SERVICES ARE DONE AT CLIENT'S OWN RISK AND THAT CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO CLIENT'S COMPUTER SYSTEM OR LOSS OF DATA OR OTHER LIABILITY THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. THE ABOVE EXCLUSIONS MAY NOT APPLY TO CLIENT.
37. Limitation of Liability CLIENT UNDERSTANDS AND AGREES THAT OHA, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AND EMPLOYEES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, (EVEN IF HWS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM THE USE OF OR INABILITY TO USE OHA'S SERVICES, RELIANCE ON OHA'S SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF OHA'S SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES.) THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM PRODUCTS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED THROUGH OHA'S SERVICES OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF CLIENT'S DATA OR TRANSMISSIONS AND ANY STATEMENTS OR CONDUCT OF A THIRD PARTY OR ANY OTHER MATTERS RELATING TO OHA'S SERVICES. SUCH LIMITATION SHALL FURTHER APPLY, WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED IN ANY WAY TO OHA'S SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CLIENT.
Without limiting the foregoing, under no circumstance shall OHA be liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, or other casualties, illness, accidents, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non performance of third parties, or loss of or fluctuations in heat, light or air conditioning. OHA's full and complete liability, for any reason whatsoever, shall be limited to the full refund of all monies paid to OHA.
38. Tort Claims Client waives all tort claims against OHA, its subsidiaries, affiliates, officers, employees and agents. The relationship between the parties is contractual in nature only. Client waives any tort claims that arise by act, or omission.
39. Indemnification Client agrees to defend, indemnify and hold harmless OHA, its directors, officers, employees and agents from and against all claims and expenses, including attorneys' fees that may arise or result from any content Client submits, posts, transmits or makes available through OHA's Services, from any product sold by Client, its agents or employees or assigns, from any Services provided or performed or agreed to be performed by OHA or from Client's violation of the TOS or Client's violation of any rights of another. Client further agrees to defend, indemnify and hold harmless OHA, its directors, officers, employees and agents from and against all claims and expenses, including attorneys' fees, arising from or related to contracts, representations, agreements, promises, etc, made between Client and third parties, or arising from or related to Client's negligence toward third parties.
40. Other Operating Systems Conversions OHA shall be given first option at compiling the work for operating systems beyond the original use.
41. Unauthorized Use and Program Licenses Client will indemnify OHA against all claims and expenses arising from uses for which Client does not have rights to or authority to use. Client is and will be responsible for payment of any special licensing or royalty fees resulting from the use of graphics programs that require such payments.
42. Notice Unless otherwise specifically provided, all notices required or permitted by the TOS shall be in writing and in English and may be delivered personally, or may be sent by email, facsimile or certified mail, return receipt requested, to the address set forth below. If Client chooses to send request by email or facsimile, a copy of the request must also be sent by mail (to the address below) as confirmation of the request.
Listbums, LLC
8520 NE 25th St., Bellevue WA 98004
43. Severability In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of the TOS shall remain valid and enforceable according to its terms.
44. Jurisdiction The TOS agreement shall be governed by the laws of the State of Washington. All legal proceedings are to be submitted exclusively to the jurisdiction of the courts in the State of Washington, King County.
45. Arbitration In lieu of litigation, Client agrees to binding arbitration if requested by OHA. Arbitration will be through the Better Business Bureau or other neutral third-party Arbitrator to be selected by OHA. If Client initiates a credit card dispute the decision of the credit card company is made through an arbitration process and the decision of the credit card company shall be binding upon Client. (See Billing Disputes)
46. Governance OHA may investigate any reported violations of this agreement, its policies or any other complaints and take any action it deems appropriate to protect its systems, facilities, Clients, and/or third parties.
47. Electronic Signatures Selecting and submitting "accept" on the electronic copy of the TOS, submitting content through the RFP, making payment, or submitting information or documents to OHA so that OHA may perform services for the Client, the same shall constitute an electronic signature.
48. General Information This Agreement constitutes the entire understanding and contract between the parties and supersedes any and all prior oral or written agreements (including, but not limited to, any prior versions of the TOS). Any modifications to this agreement must be in writing and signed by an authorized officer of OHA. All representations not in writing are null and void. Written agreements may include, but are not limited to, emails and electronic acceptance of this TOS.
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