RED SHARK DIGITAL
UPDATED: JULY 1, 2019
TERMS AND CONDITIONS
INTEGRATIVE MOBILE, LLC dba RED SHARK DIGITAL, a North Carolina limited liability company, (“RED SHARK DIGITAL”) provides, among other things, a range of design, development, advertising and marketing services (collectively, the “Services”). Effective July 1, 2019, these terms and conditions (the “Terms” or the “Agreement”) shall relate to, and shall govern, any and all agreements for Services provided by RED SHARK DIGITAL to you (the “Customer”). The Customer shall be considered to have received notice of, and agrees to be bound by, these Terms upon engaging RED SHARK DIGITAL for any Services unless otherwise expressly agreed to in writing prior to any Services being performed by RED SHARK DIGITAL on behalf of the Customer.
WHEREAS, Customer desires to engage RED SHARK DIGITAL to provide certain Services agreed to in any statement of work, signed sales order or other writing (collectively, a “Statement of Work”) which is acknowledged in a writing by the parties, from time to time; and
WHEREAS, the Statement of Work shall set forth which Services are being purchased by the Customer, the costs of the Services, and other relevant details of the Services, and the Terms are incorporated therein by reference into and made a part of any Statement of Work and shall govern the relationship between RED SHARK DIGITAL and the Customer; and
NOW THEREFORE, in consideration of the mutual promises of the parties contained in this Agreement (and any related Statement of Work), the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:
Red Shark Digital is not responsible for any claims, lawsuits, penalties, fines fees or damages in connection therewith.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT OR ANY STATEMENT OF WORK, RED SHARK DIGITAL’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT AND ANY STATEMENT OF WORK, OR AT LAW WITH RESPECT TO ANY SERVICES PROVIDED BY RED SHARK DIGITAL (WHETHER NEGLIGENT OR OTHERWISE), WILL BE LIMITED TO THE TOTAL FEES PAID (LESS ANY REFUNDS OR CREDITS) BY CUSTOMER TO RED SHARK DIGITAL UNDER THE APPLICABLE STATEMENT OF WORK. IN NO EVENT WILL RED SHARK DIGITAL BE LIABLE TO CUSTOMER UNDER, IN CONNECTION WITH, OR RELATED TO THIS AGREEMENT FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY, OR OTHERWISE, INCLUDING NEGLIGENCE, AND WHETHER OR NOT RED SHARK DIGITAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE A CONDITION AND MATERIAL CONSIDERATION FOR THEIR ENTRY INTO THIS AGREEMENT. CUSTOMER SHALL INDEMNIFY RED SHARK DIGITAL AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FROM ANY LOSS, DAMAGE, COST, OR EXPENSE (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING FROM OR ASSOCIATED WITH (A) ANY ACTIONS OR OMISSIONS OF CUSTOMER, (B) THE BREACH OF THIS AGREEMENT BY CUSTOMER, (C) NON-COMPLIANCE WITH ANY FEDERAL, STATE, OR LOCAL LAWS OR REGULATIONS, OR (D) ANY INTELLECTUAL PROPERTY OR CONTENT PROVIDED BY CUSTOMER TO RED SHARK DIGITAL. THIS INDEMNITY SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
8.1. Relationship of Parties. RED SHARK DIGITAL’s relationship with the Customer under this Agreement, and at all times, shall be that of an independent contractor, and nothing in this Agreement or the arrangements for which it is made shall make RED SHARK DIGITAL, or anyone furnished or used by RED SHARK DIGITAL in the performance of the Services, an employee, joint venture, partner, or servant of the Customer. Customer acknowledges and agrees that this Agreement is in no way exclusive.
8.2. Acknowledgements. Customer is aware that websites are built using custom HTML and CSS, and will be compatible with all major browser versions that have been updated within the last five (5) years from the effective date of the latest Statement of Work. If browser compatibility is required for versions older than five (5) years, additional fees will be required as determined by RED SHARK DIGITAL. Additional stock images or video requested by Customer will be billed at cost. All ad turn-around time is 2 (two) days from the date of written request by Customer. If Customer requests an urgent ad to be created a $250, 24-hour rush fee will be applied to Customer’s invoice. If Customer is designing its own creatives, Customer acknowledges it must provide its creative to RED SHARK DIGITAL: in .ai, .psd, or .sketch format; with a white background; in at least one of the following sizes, 728×90, 300×250, 468×60, 320×50, 160×600, 300×600, 600×315, 1200×628, 1080×1080, 100×100. Once ads are approved, RED SHARK DIGITAL requires a one business day turnaround for the ads to begin running. If any additional changes are required once a campaign is up and running, please allow 2 (two) business days for the change to be made.
8.3. Payment. Compensation due to RED SHARK DIGITAL, including but not limited compensation for services rendered and expenses incurred, shall be paid in accordance with the terms provided on the Statement of Work, or, if not specified therein, then paid in accordance with the following:
(a) For WEBSITE related services (as defined on any Statement of Work), the first half of the invoice shall be due upon receipt by the Customer, if the first half of the invoice is not paid in full thirty (30) days after date of invoice from RED SHARK DIGITAL, then RED SHARK DIGITAL will cease any and all work for the Customer until full payment is received. The second half of the invoice shall be due and payable within fifteen (15) days of the maximum project timeline date (as stated in the Statement of Work), or the website being launched (accessible by the public online), whichever comes first. If full payment is not received within fifteen (15) days, RED SHARK DIGITAL will suspend Customer’s website (removed from public viewing) or remaining project work, and charge Customer interest on any balance outstanding at a rate equal to 1.5% per month or the highest rate permitted by applicable law, whichever is greater. If Customer’s website is suspended (or deactivated) by RED SHARK DIGITAL for failure to timely pay any amount owed hereunder, Customer acknowledges and agrees that Customer will be required to pay its balance in full and pay an additional $250 service fee before RED SHARK DIGITAL will reactivate Customer’s website.
(b) For MARKETING related services (as defined on any Statement of Work), the first of the invoice shall be due upon receipt by the Customer. The Customer acknowledges and agrees that any marketing campaign shall not launch until the first month’s payment is received. Following payment of the first month’s invoice, and launch of the marketing campaign, all related subsequent invoices shall be billed to Customer on the renewal date (as set forth on the applicable Statement of Work), and Customer agrees to pay said invoices within thirty (30) days of receipt. Customer acknowledges and agrees that RED SHARK DIGITAL will charge Customer interest on any balance outstanding at a rate equal to 1.5% per month or the highest rate permitted by applicable law, whichever is greater. If full payment is not received within forty-five (45) days, RED SHARK DIGITAL will suspend all services for the Customer until full payment is received. RED SHARK DIGITAL has the right to adjust payment terms based on the Customer’s payment and credit history.
(c) For HOSTING related services (as defined on any Statement of Work), RED SHARK DIGITAL shall invoice Customer thirty (30) days prior to hosting renewal date (as set forth in Statement of Work) and Customer agrees to pay said invoices within thirty (30) days of receipt. If full payment is not received within thirty (30) days, RED SHARK DIGITAL will charge Customer interest on any balance outstanding at a rate equal to 1.5% per month or the highest rate permitted by applicable law, whichever is greater. If full payment is not received within forty-five (45) days, RED SHARK DIGITAL will suspend Customer’s website and all services for the Customer until full payment is received. If Customer’s website is suspended (or deactivated) by RED SHARK DIGITAL for failure to timely pay any amount owed hereunder, Customer acknowledges and agrees that Customer will be required to pay its balance in full and pay an additional $250 service fee before RED SHARK DIGITAL will reactivate Customer’s website.
(d) For any other compensation or fee owed, for services or expenses, not expressly referenced herein, RED SHARK DIGITAL may charge Customer interest on any balance outstanding for more than thirty days at a rate equal to 1.5% per month or the highest rate permitted by applicable law, whichever is greater.
(e) A service charge will be assessed with respect to any returned or dishonored checks of Customer. Customer will reimburse RED SHARK DIGITAL for all reasonable costs incurred (including reasonable attorneys’ fees) in collecting past due amounts owed by Customer. All payment obligations will survive termination of this Agreement. Customer acknowledges and agrees that RED SHARK DIGITAL may cease providing Services, as well as revoke the license of any Project Deliverable (as defined below), under this Agreement during any period in which Customer is delinquent in any amounts due to RED SHARK DIGITAL. All invoices will be sent by RED SHARK DIGITAL to the e-mail address listed on the Statement of Work and it shall be Customer’s responsibility to notify RED SHARK DIGITAL of any change of contact information. RED SHARK DIGITAL reserves the right to change its rates at any point upon notice to Customer. Estimates for individual services or work products will be provided upon request, but RED SHARK DIGITAL does not guarantee the accuracy of such estimate.
8.4 Delays. Implementation of deliverables tendered by RED SHARK DIGITAL may not be postponed by the Customer for more than thirty (30) days. Any deliverables postponed by the Customer for greater than thirty (30) days past the maximum project timeline date shall be voided and will be subject to a New Statement of Work prepared by Red Shark Digital and submitted to Customer for approval. Such new Statement of Work may be subject to additional or different deadlines and pricing as determined by Red Shark Digital.
Unless otherwise expressly agreed to in writing, it is the Customer’s responsibility to deliver content to RED SHARK DIGITAL. If there is delay in delivering content to complete the Services, for any reason, the balance of the payment due to RED SHARK DIGITAL shall nevertheless become due and payable no later than thirty (30) days immediately following the maximum project timeline (as stated in the Statement of Work). RED SHARK DIGITAL shall not be required to perform any additional work related to the Services until full payment is received.
8.4. Termination. RED SHARK DIGITAL may terminate this Agreement or any Statement of Work immediately at any time, for any reason, upon notice to Customer. In such instance, RED SHARK DIGITAL shall only be responsible to Customer to provide Services for which Customer has already paid RED SHARK DIGITAL. In no event will Customer be entitled to a refund.
8.5. Governing Law. This Agreement and all Statements of Work shall be governed by and construed in accordance with the laws of North Carolina, exclusive of its rules governing choice of law and conflict of laws. If legal action is commenced by either party to enforce or defend its rights under this Agreement or any Statement of Work, such action shall be brought only in a court located in Pitt County, North Carolina, and the parties agree to submit to the jurisdiction of such courts. This Agreement (and related Statements of Work) is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. This Agreement and each Statement of Work may only be amended or modified by a writing specifically referencing this Agreement or the applicable Statement of Work which has been signed by authorized representatives of the parties.
8.6. Performance. RED SHARK DIGITAL shall not be in default by reason of any failure in performance of this Agreement or any Statement of Work if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control or foreseeability of RED SHARK DIGITAL, including but not limited to, default by subcontractors or suppliers, failure of Customer to provide promptly to RED SHARK DIGITAL accurate information and materials, as applicable, acts of God or of a public enemy, acts of terrorism, United States or foreign governmental acts in either a sovereign or contractual capacity, labor, fire, power outages, road icing or inclement conditions, flood, epidemic, restrictions, strikes, and/or freight embargoes.
8.7. Waiver. If any provision of this Agreement or any Statement of Work is held to be illegal, invalid, or unenforceable, that provision shall be severed or reformed to be enforceable, and the remaining provisions hereof and thereof shall remain in full force. No delay or omission by RED SHARK DIGITAL in the exercise or enforcement of any of its powers or rights hereunder shall constitute a waiver of such power or right. A waiver by RED SHARK DIGITAL of any provision of this Agreement or any Statement of Work must be in writing and signed by such party and shall not imply subsequent waiver of that or any other provision.
8.8. Counterparts. Any Statement of Work may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together, including this Agreement, shall constitute one and the same instrument. PDF signature pages shall serve as original signature pages. Customer agrees that it will use its best efforts to cooperate with RED SHARK DIGITAL, to execute and deliver any and all other or additional documents that may be necessary or appropriate to afford RED SHARK DIGITAL the opportunity to adequately perform the Services as contemplated by the parties.
8.9. Unconditional Obligation. Customer agrees that its payment and other obligations under this Agreement and any Statement of Work are absolute and unconditional and not subject to any abatement, reduction, setoff, defense, counterclaim, or recoupment due or alleged to be due as a result of any past or future claim that Customer may have against RED SHARK DIGITAL or any of RED SHARK DIGITAL’s affiliates.
8.10. Non-Solicitation. Customer agrees (on behalf of himself, herself, itself, and any affiliates, subsidiaries or agents (“Customer’s Representatives”) that Customer (and Customer’s Representatives) will not solicit, offer employment to, engage or employ (or attempt to engage or employ) RED SHARK DIGITAL’s , employees, agents or independent contractors to provide services similar to the Services provided by RED SHARK DIGITAL to Customer while this Agreement is in effect and continuing for a period of one (1) year after the termination or expiration of this Agreement, unless Customer receives prior written approval from RED SHARK DIGITAL which may be withheld by RED SHARK DIGITAL in its sole discretion or made subject to such conditions as RED SHARK DIGITAL may impose including but not limited to a referral fee to be determined in RED SHARK DIGITAL’s sole discretion. Customer acknowledges and agrees that any breach of this Section 7.10 by Customer will cause irreparable damage to RED SHARK DIGITAL’s business. Accordingly, in the event that Customer breaches this provision, Customer shall pay RED SHARK DIGITAL liquidated damages in an amount equal to the wages or fees paid by RED SHARK DIGITAL to any agent, employee, or independent contractor solicited or hired in violation hereof during the six (6) months prior to Customer’s breach. Customer agrees that this provision is not a penalty, but an adequate, fair, and reasonable estimate of the damage that would be caused by Customer’s breach.
8.11. License. Upon final payment by Customer, except as limited herein, RED SHARK DIGITAL hereby grants to Customer a non-transferable non-exclusive, royalty-free license to use the developed materials provided to Customer pursuant to this Agreement (the “Project Deliverables”). Notwithstanding anything to the contrary contained in this Agreement, and unless otherwise agreed to in writing, RED SHARK DIGITAL reserves, and Customer grants to RED SHARK DIGITAL, unrestricted rights to use Customer’s name, logo, project case study, and any Project Deliverables for any of RED SHARK DIGITAL’S marketing and promotional purposes. Neither RED SHARK DIGITAL nor any of its employees or agents warrant that the functions contained in the Project Deliverables will be uninterrupted or error-free. In no event will RED SHARK DIGITAL or its subcontractors be liable to Customer with respect to any damages related to third parties, including without limitation, damages related to the Hosting Service (as defined below), failure or delay of any third-party service provider, issues related to any particular computer or internet software. This provision 8.11 shall survive the termination or expiration of this Agreement.
8.12. Notices. All notices under this Agreement shall be in writing and delivered by overnight delivery service or certified mail, return receipt requested, to the address of such party specified on the most recently issued Statement of Work or as specified by such party in writing to the other party after the date of this Agreement. Notices delivered personally shall be deemed given upon documented receipt or refusal by recipient to accept receipt. Notwithstanding the foregoing, all communications from Customer to RED SHARK DIGITAL concerning any disputed debts or amounts owed to RED SHARK DIGITAL by Customer, including, without limitation, any instruments tendered as full or partial satisfaction of a debt or an account receivable, should be sent to RED SHARK DIGITAL to the attention of the “Disputed Debts Department.” Notwithstanding anything to the contrary herein, RED SHARK DIGITAL and its personnel shall be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of any assignment. RED SHARK DIGITAL reserves the right to reproduce, publish, and display any Project Deliverable in person, in print, in galleries, or online for the purposes of recognition, promotion, or professional advancement, and reserves the right to be credited with authorship of any Project Deliverable in connection with such uses. Customer agrees that RED SHARK DIGITAL may publicly refer to Customer (both in writing and orally) as a client, and may identify Customer as a client, among other places, on its website, in press releases, and in sales materials and presentations.
Notices shall be sent to:
RED SHARK DIGITAL
PO BOX 8086
GREENVILLE, NC 27835