TERMS OF SERVICE
Acceptance by Client of a service agreement issued by DIVA GRAPHICS LLC (“DIVA GRAPHICS”), to which these terms and conditions are attached or by reference made a part of, shall constitute an agreement between Client and DIVA GRAPHICS with respect to the responsibilities of DIVA GRAPHICS and Client pursuant to the service agreement and these Standard Terms and Conditions (collectively referred to as the “Agreement”). Client represents and warrants that: (1) it has the full authority to enter into the Agreement and to perform the acts or obligations required of it in the Agreement; (2) the execution of the Agreement and the performance of its obligations do not and will not violate any other agreement that it is a party to; (3) the Agreement will constitute the legal, valid and binding obligation of each party, enforceable against each party in accordance with its terms. The formation, construction, performance and enforcement of the Agreement shall be in accordance with the laws of the State of South Carolina without regard to its conflict of law provisions.
(I) Scope of Service
DIVA GRAPHICS shall provide only those professional services and/or products specified in the Agreement (the “Work”). Client understands and agrees that, unless listed in the Agreement, DIVA GRAPHICS is not responsible for any other work or scope of supply or any disclosure, notifications or reports that may be required to be made to third parties, including appropriate governmental authorities. If Client requests and DIVA GRAPHICS agrees to perform any services that are in addition to or outside the scope of Work identified in the Agreement, Client shall promptly pay DIVA GRAPHICS for such services in accordance with the terms and rates shown in the Agreement or, if no such terms or rates are shown in the Agreement, in accordance with DIVA GRAPHICS’s standard terms and rates for the services performed.
(II) Client’s Content
Client represents and warrants to DIVA GRAPHICS that: (1) it owns, or has acquired the express written authority to use all of the content Client gives to DIVA GRAPHICS, (“Client Content”); (2) Client Content does not contain any obscene, threatening, harassing, vulgar, defamatory, libelous, infringing or unlawful content; (3) Client Content does not infringe upon nor violate the rights of any third party, including copyrights and trademarks; (4) there are no claims against Client regarding Client Content; and (5) Client will at all times ensure that it is in compliance with the terms and conditions of any licensing contracts between Client and a third party.
(III) Client’s Ownership and DIVA GRAPHICS’s Ownership
Throughout the process of design, DIVA GRAPHICS may show the User different designs and/or design concepts, however the User has no right or license to use or copy any of the designs other than the final one you paid for. This final design will be shown and available for download in the User's Account. Throughout the process DIVA GRAPHICS will also make use of certain symbols, colors, fonts and other design elements (collectively known as "Design Resources”) that may or may not be used to design the user’s End Product. You may not use any of these Design Resources individually. Once payment is received, DIVA GRAPHICS grants all rights to content produced for Client exclusively to Client, excluding third party components. Notwithstanding the foregoing, DIVA GRAPHICS retains the right to display graphics and other Web content elements as examples of DIVA GRAPHICS’s work. DIVA GRAPHICS shall own, and retain all intellectual property rights in all preexisting material, information, know-how and data created.
(IV) Access to Site and Information
Client will provide for right of entry and access to all relevant sites, equipment and other information in its control or possession as is necessary for DIVA GRAPHICS to timely and fully complete the Work. DIVA GRAPHICS is not responsible for the quality or accuracy of data or information, nor for the methods from which the data was developed, where such information or data is provided by or through Client or others that are not agents or DIVA GRAPHICS, and DIVA GRAPHICS has no obligation to investigate facts or conditions not disclosed to it by Client.
(V) Payment Terms
Client’s failure to pay on time constitutes a material breach of contract by Client permitting DIVA GRAPHICS to suspend its performance hereunder; additionally, DIVA GRAPHICS shall have all other remedies permitted to DIVA GRAPHICS by law, equity and these terms. DIVA GRAPHICS reserves the right to apply interest charges at 12% APR on any past-due invoice. If Client has provided DIVA GRAPHICS with a credit card authorization, DIVA GRAPHICS shall be entitled to charge the invoice amount and interest against such card. Client will be responsible for all collections costs, including reasonable attorney’s fees, incurred by DIVA GRAPHICS as a result of any collection process or proceeding.
(VI) Notice and Notice of Cancellation:
DIVA GRAPHICS or Client may cancel this Agreement in advance by delivering written Notice of Cancellation to the other party at the address provided at least sixty (60) days prior to the requested cancellation date. Any notice (“Notice”) shall be deemed sufficient if addressed in writing and mailed to the party’s address listed in the Agreement or emailed to an authorized representative, provided such notice confirms the date of receipt.
(VII) WARRANTY DISCLAIMER
EXCEPT AS EXPRESSLY SET FORTH HEREIN, DIVA GRAPHICS’ SERVICES ARE PROVIDED “AS IS.” DIVA GRAPHICS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. DIVA GRAPHICS DOES NOT WARRANT THAT THE SERVICES WILL MEET CLIENT’S SPECIFIC REQUIREMENTS OR THAT THE SERVICES WILL BE COMPLETELY ERROR-FREE, COMPLETELY SECURE OR UNINTERRUPTED. DIVA GRAPHICS SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY UNAVAILABILITY OR INOPERABILITY OF TELECOMMUNICATIONS SYSTEMS, THE INTERNET, SEARCH ENGINES, SOCIAL MEDIA SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF DIVA GRAPHICS. CLIENT ASSUMES ALL RISKS RELATED TO PROCESSING OF TRANSACTIONS RELATED TO ELECTRONIC COMMERCE. Client’s sole remedy for a breach of the foregoing warranty is to require DIVA GRAPHICS to correct or replace, at DIVA GRAPHICS’s election, the affected service if Client gives Notice to DIVA GRAPHICS of such breach within 6 months from the date the affected services were provided.
(VIII) LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNITY OBLIGATIONS HEREUNDER, BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS AND/OR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, IN NO EVENT WILL DIVA GRAPHICS, IT’S OWNERS, OFFICERS, OR EMPLOYEES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF USE, DATA, BUSINESS OR PROFITS OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, OR PROFESSIONAL ERRORS OR OMISSIONS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON AGREEMENT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. DIVA GRAPHICS, IT’S OWNERS, OFFICERS, OR EMPLOYEES’ CUMULATIVE LIABILITY TO CLIENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO DIVA GRAPHICS BY CLIENT PURSUANT TO THE PREVIOUS THREE MONTHS OF THE AGREEMENT. DIVA GRAPHICS SHALL NOT BE LIABLE TO CLIENT OR CLIENT’S REPRESENTATIVES FOR ANY HARM RESULTING FROM ANY USE OF CONFIDENTIAL INFORMATION.
Client agrees to defend, indemnify and hold harmless DIVA GRAPHICS from and against any and all claims, liabilities, suits, actions, proceedings, demands, damages, losses, costs, and expenses, including reasonable attorney’s fees, based upon a third party claim arising, directly or indirectly, out of the Client Content.
(X) How Disputes will be Resolved/Legal Issues
DIVA GRAPHICS’s home is in South Carolina. Therefore, the formation, construction, performance and enforcement of the Agreement shall be in accordance with the laws of the State of South Carolina without regard to its conflict of law provisions. Any action or proceeding arising from a claimed breach of this Agreement shall only be brought in the appropriate state or federal court in the State of South Carolina and Client consents to the jurisdiction of such South Carolina courts (and appellate courts) and by agreeing waives the right to object to South Carolina venues or jurisdiction. Client also consents to in personam jurisdiction (personal jurisdiction) and agrees that service by registered mail, return receipt requested, is sufficient. If DIVA GRAPHICS prevails in any dispute arising out of this Agreement, DIVA GRAPHICS will be entitled to reimbursement for its expenses and costs (including attorneys’ fees), regardless of whether any legal action is filed. Any action or proceeding arising out of this Agreement must be instituted within two (2) years after such cause of action has accrued. Client acknowledges that if the remedy at law for any breach, or threatened breach, of this Agreement is by its nature inadequate to compensate DIVA GRAPHICS for the damages that are certain to result then DIVA GRAPHICS may seek temporary and/or permanent injunctive relief (an official order to stop!), and any other available equitable relief and/or damages, without any requirement to obtain a bond or prove monetary damages.
(XI) Force Majeure
Neither party shall be liable for any default or delay in the performance of its obligations under this Agreement to the extent such default or delay is caused, directly or indirectly, by reason of fire, earthquake, labor dispute (other than labor disputes of such party or its independent contractors and its employees), act of God, acts of terrorism, or any local, state, federal, national or international law, governmental order or regulation or any other event beyond a party’s reasonable control.
Each provision of the Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision is held invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision. Indemnification, Client’s Ownership and DIVA GRAPHICS’s Ownership and shall survive termination or cancellation of the Agreement.