Terms and Conditions
Fyin, Inc. is a Wisconsin corporation, all rights reserved.
1: ACCEPTANCE; SCOPE
These TERMS AND CONDITIONS ("Terms and Conditions") are made and entered into between Fyin, Inc. ("Fyin.com"), and you ("Client"). A request for commencement of service, or payment of a Fyin.com invoice, constitutes acceptance of all of these Terms and Conditions. The Terms and Conditions are effective on the date of acceptance (the “Acceptance Date”). 1.2:
Upon acceptance of these Terms and Conditions, Fyin.com agrees to perform Services for Client subject to these terms and conditions contained herein. Fyin.com services may include but are not limited to: an Annual Support Package, any development and support services that the parties agree to in writing, any Hosting services provided by Fyin.com, and any additional services provided by Fyin.com in addition to the specified development and support services. 1.3:
The following terms will have the meanings defined:
"Communication" Any correspondence, support ticket, email, phone call or other messaging technology used to exchange information between Fyin.com and the Client.
“Fyin.com Materials” means (i) all pre-existing works, inventions, technology, data and materials incorporated or used in association with the design and development of the Project Deliverable or Work Product, including software (in source and object forms); (ii) any works related by Fyin.com pursuant to its performance of the Services, including, but not limited to, any proposed, draft, or preparatory materials, that are not incorporated into the Project Deliverables; and (iii) all (A) derivatives, improvements, enhancement or extensions of the Fyin.com Materials, and (B) all ideas, concepts, know-how, and techniques, that Fyin.com may use, conceive of or first reduce to practice in connection with the Services that are not uniquely applicable to Client.
"Fyin.com Technology" means Fyin.com's proprietary technology, including software (in source and object forms), designs, algorithms, architecture, class libraries, objects, documentation (both printed and electronic), Fyin.com Confidential Information, and any related intellectual property rights throughout the world (whether owned by Fyin.com or licensed to Fyin.com from a third party) possessed by Fyin.com before entering into these Terms and Conditions and also including any derivatives, improvements, enhancements, or extensions thereof conceived, reduced to practice, or developed during the term of these Terms and Conditions by either party that are (a) not uniquely applicable to Client or (b) that have general applicability in the art.
“Services” means all services related to Annual Support Package, development, support, hosting, and additional services to be provided to Client.
"Work Product" means all software, materials, designs, documentation, inventions, discoveries, techniques, processes, data, technical and/or business information, specifications, drawings, records, and works of authorship originated or prepared by Fyin.com in the course of rendering Services hereunder, commonly referred to as a "Deliverable." 1.4:
In the event of a conflict between the provisions of any agreement for the purchase of an Annual Support Package and these Terms and Conditions, the provisions in the agreement relating to the purchase of Annual Support Package will control.
2: TERM AND TERMINATION
The term of these Terms and Conditions shall commence upon the Acceptance Date, and shall be in effect until terminated by either Fyin.com or Client. These Terms and Conditions can be terminated by either Fyin.com or Client with thirty (30) days written notice by sending such notice of termination to . Client must be paid in full upon termination. The Sections that are continuing in nature, including but not limited to, 3, 4, 8, 9, 11 and 12 hereof shall survive termination of these Terms and Conditions.
Client agrees that Fyin.com performance is contingent upon Client’s timely and effective performance of its responsibilities, decisions and approvals. Fyin.com may rely on all decisions and approvals of Client.
3: CONFIDENTIAL INFORMATION
The performance of these Terms and Conditions and any associated Annual Support Package, development, support, hosting, and other Services may require Fyin.com, Client, or both to have access to information concerning the other party's business affairs, clients, vendors, finances, properties, procedures, operations, techniques, trade secrets, proprietary information of third parties lawfully possessed by either Fyin.com or Client, or other proprietary or business information (collectively referred to as "Confidential Information"). Fyin.com and Client will not, directly or indirectly, use, disclose, or cause to be disclosed any Confidential Information of the other party for any reason other than to carry out the purposes of these Terms and Conditions and any associated Annual Support Package. The restrictions described in this Section 3 will remain in force during the term of these Terms and Conditions and thereafter for a period of one (1) year. Confidential Information does not include information that the receiving party can demonstrate (a) at the time of disclosure is generally known to the public; (b) after disclosure becomes generally known to the public through no fault of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure and was not obtained from the disclosing party; (d) is later obtained by the receiving party on a non-confidential basis from a third party not known by the receiving party to be under an obligation of confidentiality to the disclosing party; or (e) is later independently developed by the employee or agents of the receiving party which had no access to or knowledge of the Confidential Information. 3.2:
Fyin.com and Client will require their employees and agents to protect Confidential Information in accordance with the terms of this Section 3. Notwithstanding any other limitation set forth in these Terms and Conditions, if a party breaches its obligations under this Section 3, the other party shall be entitled to a decree of specific performance to restrain any further breach and nothing herein shall be deemed to limit a non-breaching party's remedies at law or in equity for any breach by the other party of this Section 3.
4: RIGHTS IN INTELLECTUAL PROPERTY
Fyin.com and its licensors will retain exclusive ownership of the Fyin.com Materials. Client will have no right to use such Fyin.com Materials apart from such license as granted for the Project Deliverable or Work Product in any other manner. Fyin.com shall not deliver any source code for Fyin.com Technology to Client upon completion of Services. Deliverables for Fyin.com Technology shall include only compiled or exported non-source code files. 4.2:
When Fyin.com receives full and final payment for each project, Fyin.com will grant to Client a non-exclusive license to use the Work Product for its intended uses. Such license does not include (a) the right of Client to use the Work Product or license others to use the Work Product to compete against Fyin.com or (b) the right of the Client to provide services to third parties or to license the Work Product for any use or purpose. This license is limited to one active installation of the Deliverable. To the extent necessary for Client to enjoy its rights in the Work Product, Fyin.com grants Client a fully paid nonexclusive license to use any Fyin.com Technology incorporated in the Work Product. Fyin.com reserves all rights not expressly granted to Client in these Terms and Conditions. 4.3:
Fyin.com's logo and branding will remain on all finished Work Product as delivered to Client. Fyin.com may have its branding removed at any time. If the Client is hosting the website, Fyin.com will notify the client in writing and the Client will have (30) days to comply with Fyin.com's request. Client may request Fyin.com's logo or branding removed from their website if (a) the website is no longer hosted by Fyin.com and (b) the Client pays an additional one-time license fee of $3,000 for the right to use the Work Product unbranded.
Unless an Annual Support Package is purchased, billing for Services will be at the rate(s) in Schedule A. A deposit may be due upon execution of these Terms and Conditions, with the deposit amount to be applied toward future billing for any Services. Deposits and pre-payments are non-refundable to Client. Fyin.com’s standard hourly rate may vary from time to time. Fyin.com will invoice Client on a twice monthly basis, or as otherwise agreed by the parties, for all other Services. 5.2:
Unless otherwise agreed to, in a notorized document signed by a Managing Partner of Fyin.com, all Services will be billed to Client based on time and material. 5.3:
Any Communication between Fyin.com and Client shall be billed in half-hour increments. 5.4:
Fyin.com shall invoice Client for Development, Support and Hosting on a monthly basis. Failure to remit payment for Hosting services within ten (10) days of the billing date will result in the Client's site being taken down without further notice. 5.5:
Consecutive months start and stop on the same date, unless the client does not engage in services for forty-five (45) days. Except for situations where Client does not avail itself of services for forty-five (45) days or more, monthly billing periods last for thirty (30) days. 5.6:
Travel Credits must be used in the month they are earned, or else they are lost. 5.7:
Any billing problems or discrepancies must be brought to Fyin.com’s attention in writing by Client within fifteen (15) days from the date you are billed. If Client does not bring them to Fyin.com’s attention within fifteen (15) days, Client agrees to waive their right to dispute such problems or discrepancies. 5.8:
Clients with account balances in excess of two-thousand dollars, and who are incurring less than five-hundred dollar of fees in a given month, Client will be charged a five-hundred dollar maintenance fee for any such month. 5.9:
Unless otherwise specified, invoices are payable within ten (10) days of receipt by Client. If Client fails to pay any charges when due, Fyin.com reserves the right to charge Client interest on any unpaid balance at 2% per month, or the maximum amount allowed by law, whichever is lower. Discounts are forfeited if the Client is in breach of its obligations and Client will be liable for Fyin.com's hourly rate as specified in Schedule A.
6: WARRANTIES BY FYIN.COM
Fyin.com warrants to Client that the functionality of the Work Product accepted by client will materially comply with requirements set forth in writing between Fyin.com and Client. 6.2:
Fyin.com warrants that the Services and Work Product shall not infringe any United States patent or registered copyright existing on the Acceptance Date of these Terms and Conditions. This warranty does not apply to infringement arising out of Services performed or Work Product produced based upon specifications or designs provided by Client to Fyin.com, Client's use of the Services or Work Product in combination with any materials not furnished by Fyin.com, or Client's use of the Services or Work Product in a manner for which they were not designed, and shall be void if any modifications to the Services or Work Product are made by Client or a third party. If the provision or discharge of any element of the Services or Work Product is enjoined as a result of any claim arising out of a breach of this warranty, Fyin.com shall, at its option and expense: (i) procure the right to continue to use such element; (ii) replace such element with a comparable element which is non-infringing; (iii) modify the Services or Work Product so that it becomes non-infringing; (iv) refund to Client the portion of the fees paid allocable to such element of the Services or Work Product. Any such modified or replacement element shall conform and shall be subject to Fyin.com's warranties contained in these Terms and Conditions. THE ABOVE IS THE CLIENT'S SOLE REMEDY FOR INFRINGEMENT CLAIMS. 6.3:
At the request of Client, Fyin.com will, to the extent allowable by law, pass on to Client any warranties for third-party hardware and software made by the manufacturers of the same. OTHERWISE, FYIN.COM MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THIRD-PARTY HARDWARE, SOFTWARE, OR OTHER ITEMS. 6.4:
THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 6 CONSTITUTE THE ONLY WARRANTIES MADE BY FYIN.COM WITH RESPECT TO THESE TERMS AND CONDITIONS AND THE RELATIONSHIP OF THE PARTIES. ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES, OR GUARANTEES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUALITY, ACCURACY, PERFORMANCE, OR FREEDOM FROM ERROR ARE DISCLAIMED AND EXCLUDED.
Client will have fifteen (15) business days after receipt of any Deliverable or Work Product (or portion of Deliverable, if such Deliverable is to be delivered in milestones as set forth in an applicable Statement of Work) to test and review such Deliverable or Work Product. If a Deliverable or Work Product does not materially comply with the functionality contracted for by Fyin.com, Client may request modification of such Deliverable or Work Product by written notice to Fyin.com. Such notice will specify in detail the reasons the Deliverable or Work Product fails to meet the relevant functionality. Fyin.com will use commercially reasonable efforts to correct any material deficiencies and provide Client with a revised Deliverable or Work Product as soon as practicable. Client will have the right to approve or reject the corrected Deliverable or Work Product in accordance with this Section. Approval by Client shall not be unreasonably withheld.
8: RELATIONSHIP OF THE PARTIES
8.1: Independent Contractor.
Fyin.com is an independent contractor and not an employee, agent, joint employer, or joint venture of the Client. Nothing herein shall be construed as inconsistent with that status. Fyin.com nor Client shall make no representation to any third party that is inconsistent with its status as an independent contractor. 8.2:
Fyin.com shall have the exclusive right to establish the work hours of its personnel providing the Services and to control and direct the methods, means, manner, and details of performing its obligations under these Terms and Conditions. The Client shall not direct or control the details of the way Fyin.com or its personal perform the Services.
Fyin.com shall not be liable for any delays or failure in the performance of Services if such delay or failure is due to causes beyond Fyin.com's reasonable control, including, but not limited to, Acts of God, strikes, delays in transportation, or inability to obtain necessary labor or materials, and force majeure.
10: WEB HOSTING
Fyin.com agrees to perform web hosting services that may include but are not limited to: providing an internet address for storage and access to Client's text, pictures, sound, graphics, video, links, and other data ("Content") on dedicated or shared servers. 10.2:
Fyin.com will make reasonable efforts to assure that its equipment and infrastructure is in good working order. However, Fyin.com is not responsible for any Client losses related to downtime. 10.3:
Fyin.com will backup Client's website from time to time. However, Fyin.com is not responsible for lost Content. 10.4:
All Content stored by Client on Fyin.com's servers shall at all times remain the property of Client. Client grants to Fyin.com a non-exclusive, worldwide license to the Content only to the extent necessary for Fyin.com to host the Content. 10.5:
Client will only use Fyin.com's hardware and services for lawful purposes and Client will not store or provide any Content or link to any material that violates foreign, federal, state or local law. Client will not send, or facilitate the use of, spam. 10.6:
Client shall defend Fyin.com against any third party claim, action, suit or proceeding arising as a result of Client's use Fyin.com's hardware or services and indemnify Fyin.com for all losses, damages, expenses, and costs incurred by Fyin.com as a result of a final judgment entered against Fyin.com in any such claim, action, suit or proceeding.
11: LIMITATION OF REMEDIES AND LIABILITY
As Client's sole and exclusive remedy for any nonconforming, defective, or incomplete Services or Work Product, Fyin.com will use its reasonable efforts to correct or cure such nonconformity or defect. If Fyin.com is unable to correct or cure such nonconformity or defect in the Services or Work Product, Client will receive a refund of a portion of the fees paid with respect to such project as is mutually deemed reasonable by both Client and Fyin.com. As a condition precedent to any such refund to Client by Fyin.com, Fyin.com will be provided a reasonable opportunity and a reasonable length of time to correct or cure any such nonconformity or defect. However, Fyin.com will not be obligated to correct, cure, or otherwise remedy any nonconformity or defect if at any time: (i) Fyin.com has not been notified in writing of the existence and nature of any nonconformity or defect promptly upon its discovery; or (ii) Fyin.com is not notified of such nonconformity or defect within 90 days of completion and active operation of the project. In such an eventuality, any necessary correction of the Services or Work Product will be solely at Client's expense and Client will not be released or relieved, in whole or in part, from its duty to pay Fyin.com as herein agreed. 11.2:
FYIN.COM'S CUMULATIVE LIABILITY, IF ANY, TO CLIENT FOR ANY AND ALL CLAIMS WHATSOEVER RELATED TO THE SERVICES, THESE TERMS AND CONDITIONS, OR THE RELATIONSHIP OF THE PARTIES INCLUDING, BUT NOT LIMITED TO, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL SERVICE FEES PAID TO FYIN.COM BY CLIENT. IN NO EVENT WILL FYIN.COM BE LIABLE FOR ANY LOSS OF PROFIT, REVENUE, OR DATA; ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES; OR ANY CLAIMS OR DEMANDS BROUGHT BY CLIENT, EVEN IF FYIN.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS. EXCEPT FOR A BREACH OF SECTION 3, CLIENT WILL NOT BE ENTITLED TO SPECIFIC PERFORMANCE IN CONNECTION WITH THESE TERMS AND CONDITIONS.
The failure of either party at any time to require performance by the other party of any provision hereof shall not affect the full right of such party to require such performance at any time thereafter nor shall the waiver of either party of a breach by the other be deemed to be a waiver of any subsequent breach of such provision. 12.2: Non-Solicitation of Employment.
While these Terms and Conditions is in effect and for one year thereafter, both parties agrees not to solicit, retain, or hire any of the other party's employees who have performed services for the hiring party pursuant to these Terms and Conditions to perform substantially similar services for the hiring party or to serve the hiring party in a substantially similar capacity. 12.3: Successor and Assigns.
Client may not assign any of its rights or duties under these Terms and Conditions without the prior express written consent of Fyin.com, which shall not be unreasonably withheld. Subject to the foregoing, these Terms and Conditions shall bind and inure to the benefit of Fyin.com, Client, and their respective permitted representatives, heirs, successors and assigns. 12.4: Taxes.
Any sales, excise, duty or other tax or fee imposed by any government authority on the Services shall be the responsibility of Client. 12.5: Severability.
If any part of these Terms and Conditions is held void or unenforceable, the remainder of these Terms and Conditions will nevertheless remain in full force and effect. 12.6: Entire Agreement; Governing Law.
These Terms and Conditions, together with any agreement for Annual Support Package, contains the entire understanding of the parties with respect to the subject matter hereof, and shall be governed by and construed in accordance with the laws of the State of Wisconsin without consideration of its conflicts of laws provisions. The parties agree that all lawsuits relating to these Terms and Conditions, and relating to Annual Support Package, and the relationship of the parties shall be brought exclusively in the state and federal courts located in Milwaukee County, Wisconsin, and hereby consent to the exclusive jurisdiction and venue of such courts. 12.7: Amendments.
These Terms and Conditions supersede all prior agreements or assertions, whether oral or written, between the parties. These Terms and Conditions may be amended from time to time by Fyin.com.