Terms and Conditions
Fyin.com, Inc. is a Colorado corporation, all rights reserved.
1.1: Terms and Conditions
These Terms and Conditions (“Terms and Conditions”) are made and entered into between Fyin.com, Inc. (“Fyin.com”), and you a Client (“Client”), and provide the general guidelines that are applicable and enforceable regarding the services provided by Fyin.com to Client.
Acceptance – A valid assent by a Client to the Terms and Conditions or other Agreement created by Fyin.com, signifying that a valid contract has been formed for the performance of Fyin.com products or services. A request for commencement of service or payment of a Fyin.com invoice constitutes acceptance of these Terms and Conditions or other associated Agreement. The Terms and Conditions and any associated Agreements are effective on the date of acceptance.
Agreement – Any materials, documents, or written and signed communications interpreted with or integrated into these Terms and Conditions. An Agreement may include, but is not limited to, an additional signed document, such as a Fyin.com proposal for services, and that signifies the commencement of services by Fyin.com. An Agreement does not include other communications by Fyin.com or Client not specifically identified to become part of a written contract.
Communication - Any correspondence, support ticket, email, phone call or other messaging technology used to exchange information between Fyin.com and a Client. A written communication includes electronic formats such as email, but such communication may require verification of receipt.
Confidential Information - Information concerning a party's business affairs, clients, vendors, finances, properties, procedures, operations, techniques, trade secrets, proprietary business information, business strategies, Confidential Information about third parties lawfully possessed by either Fyin.com, or Client information about products or services that are not yet released to the public, or other proprietary and/or confidential business information.
Full-Time Equivalent (FTE) - Fyin.com follows the U.S. Federal Government Accountability Office definition of an FTE, as the total hours worked divided by the maximum number of compensable hours in a full-time schedule as defined by law. Additionally, FTE is a unique, discounted, and prepaid service which Fyin.com may use to provide a Client with dedicated personnel resources.
Fyin.com Materials - (i) All pre-existing works, inventions, technology, data and materials incorporated or used in association with the design and development of a project, deliverable or work product, and including software (including source, binary, script, text, object or other software forms); (ii) any works related by Fyin.com pursuant to its performance of 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 - Fyin.com's proprietary technology: Includes software (source, binary, script, text, object or other software forms), designs, algorithms, architecture, class libraries, objects, documentation (both printed and electronic), Fyin.com’s confidential information, and any related intellectual property rights (whether owned by or licensed to Fyin.com) possessed by Fyin.com, and also including any derivatives, improvements, enhancements, or extensions thereof conceived, reduced to practice, or developed during the period 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.
Normal Business Hours – Normal business hours are Monday through Friday, 9:00am – 5:00pm MNT (UTC-07:00) excluding Federal and State holidays.
Ramp-up – An increase to a Client’s FTE resource allocation.
Ramp-down – A decrease to a Client’s FTE resource allocation for a given project.
Service Level Agreement – The Service Level Agreement (“SLA”) is an agreement between Fyin.com and Client that documents or outlines the services to be provided by Fyin.com to Client.
Services - All services related to support, development, hosting, marketing, subject matter expertise, consulting, and any additional services to be provided to Client by Fyin.com.
Terms and Conditions – These terms and conditions, which together with a signed Client Agreement, create an integrated and legally enforceable contract.
Work Product / Deliverable - 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.
1.3: Services Provided
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: Support, development or other services that the parties agree to in writing, hosting services provided by Fyin.com, or any additional services provided by and agreed to by Fyin.com in addition to the specified development and support services.
These Terms and Conditions shall commence upon the acceptance date at which time a valid contract shall be formed between Fyin.com and Client. The contract shall be binding for the term specified in the Acceptance letter and shall remain in effect until terminated by either Fyin.com or Client.
For termination to be effective, signed written notice must be scanned, emailed, and received by Fyin.com at Termination@Fyin.com, and must be received within thirty (30) calendar days prior to Agreement termination. The Client account must be paid in full prior to termination; otherwise termination will be deemed invalid, until Client’s account is paid in full. Oral termination is not acceptable and will be deemed invalid. The Sections that are continuing in nature, including but not limited to, 3, 4, 8, 9, 11 and 12 herein shall survive termination of these Terms and Conditions or other Agreement. Fyin.com or Client may terminate these Terms and Conditions. Cancellation or termination of an Agreement may invalidate discounted or pre-negotiated service or labor rates provided by Fyin.com. In the event that an Agreement is cancelled or terminated, or, in the event that a Client wishes to change, modify, or reduce an existing Agreement, Fyin.com’s labor rates will be at a rate of $200 per hour.
2.2: Due Diligence
Fyin.com's performance may rely upon Client’s timely and effective performance of any responsibilities, decisions or approvals. Fyin.com may rely on all decisions and approvals of Client and reserves the right to use professional judgment when necessary. Client agrees to act or respond in a timely and reasonable manner.
3.1: Confidential Information
The performance of duties outlined in these Terms and Conditions and associated Agreements, as well as any Services related to development, support, hosting, or other Services, may require Fyin.com, Client, or both to have access to Confidential Information concerning the other party. Additionally, the results of the Services provided by Fyin.com pursuant to these Terms and Conditions, Agreements, or certain portions of Services or the processes involved in reaching the results of the Services may be considered to be the Confidential Information of Client and will be protected as such upon Client’s request. 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 associated Agreements. The restrictions described in this Section will remain in force during the period of these Terms and Conditions and thereafter in regards to all Confidential Information herein, or, until a Party is informed by the Party in proper ownership of such Confidential Information that certain Confidential Information is no longer considered to be confidential, at which point, only the Confidential Information for which a party has released confidentiality will not be considered to be Confidential Information or such Confidential Information is no longer confidential pursuant to the below:
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 proper possession of the receiving party at the time of disclosure and was not obtained from the disclosing party or from a party with an obligation to hold such information as confidential;
(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 and without in any way referencing the Confidential Information of the other party to this Terms and Conditions.
Each Party will make best efforts to inform the other party of or remind the other Party of the confidential nature of Confidential Information shared with the other Party, however a Party’s failure to remind or inform the other Party of the confidentiality of Confidential Information that a reasonable person would assume to be confidential in nature will not absolve a Party from violating the terms of this Section.
3.2: Protecting Confidential Information
Fyin.com and Client will require all employees, contractors, agents or other representatives to protect any Confidential Information of either Party in accordance with the terms of Section 3.1 and 3.2. Notwithstanding any other limitation set forth in these Terms and Conditions, if a party breaches an obligation to protect the Confidential Information of the other Party under these Terms and Conditions, the damaged party shall be entitled to seek an immediate injunction for any breach of this Agreement.
4.1: Fyin.com Materials
Fyin.com and its licensors will retain exclusive ownership of all Fyin.com developed Materials. Client will have no right to use such Fyin.com Materials in any manner other than as provided by the license granted for the Project Deliverable or Work Product. Fyin.com will only provide Client with source code that is not considered to be Fyin.com Materials as defined herein, unless otherwise agreed between the parties in writing.
4.2: Licensing and Limitations
When Fyin.com receives full and final payment for each project, Fyin.com will grant Client a non-exclusive license to use a Work Product or Deliverable for Client’s intended uses. Such license does not include (a) the right of Client to use the Work Product or Deliverable, or license others to use the Work Product or Deliverable, 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 Work Product or Deliverable. To the extent necessary for Client to enjoy its rights in the Work Product or Deliverable, Fyin.com grants Client a non-exclusive license to use any Fyin.com Technology which is incorporated in the Work Product. Fyin.com reserves all rights not expressly granted to Client in these Terms and Conditions or any associated Agreement.
Fyin.com's logo and branding will remain on all finished Work Product as delivered to Client. Fyin.com may choose to have its branding removed at any time. If the Client is hosting a website, Fyin.com will notify the client in writing and the Client will have thirty (30) calendar 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 without Fyin.com branding.
5.1: Rates and Billing
Billing for Services will be at the rate(s) defined in Schedule A. A deposit may be due upon execution of an Agreement or 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 FTE Services are pre-paid and may reflect a discounted rate. Discounted labor rates for FTE services are forfeited if an Agreement is terminated or cancelled prior to the end of the Agreement.
5.2: Agreement Type
Unless otherwise agreed to in a notarized document signed by a Managing Director of Fyin.com, all Services will be billed to Client based on Time and Materials (T&M), and rates and billing are based primarily on the time and or materials spent by Fyin.com in furtherance of Client’s project or Services.
5.3: Communication Increments
Any and all communications made between Fyin.com employees, staff, agents, or other representatives and Client shall be billed in 1/10th (6 minute) increments.
Fyin.com shall invoice Client for any applicable Development, Support and Hosting on a monthly basis. Failure to remit payment for Hosting Services (if applicable) within thirty (30) days of the billing date will be considered delinquent and will result in websites hosted by Fyin.com for Client being taken down without notice. Fyin.com’s standard hourly rate may vary. When necessary or reasonable, Fyin.com may invoice Client on a bi-monthly (twice-per-month) basis, or as otherwise agreed by the parties for all other Services.
5.5: Billing Discrepancies
Any billing problems, discrepancies, or inconsistencies must be in writing and delivered to Fyin.com within thirty (30) days from the date of invoice. Any problem, discrepancy, or inconsistency that is not delivered with adequate notice and to Fyin.com’s attention within thirty (30) days will be deemed waived.
5.6: Surplus Accounts
Clients or customers with account balances in excess of two thousand ($2,000.00) dollars may be charged maintenance fees. Maintenance fees will be charged at a rate of 1/32nd of an FTE per month to each account balance for each surplus month.
5.7: Full-time Equivalent
Fyin.com's Full-Time Equivalent (FTE) is a unique, discounted, and prepaid service to provide a Client with dedicated personnel resources. A breach of these Terms and Conditions or a breach in an Agreement, to include a failure to remit payment, will result in a forfeiture of any discounts in labor rates; the project will be adjusted to Fyin.com's hourly rate as listed in Schedule A and Fyin.com’s hourly rate will be no less than $200 per labor hour. Increases or decreases or a Ramp-up or Ramp-down to a Client’s FTE resource allocation must be in writing and must be gradually made by 1.0 FTE per month unless otherwise agreed to in a signed writing. Allocated but unused hours within a month may be rolled forward for a period of ninety (90) days. After such time, unused or unexpended hours shall be forfeited unless otherwise agreed to in writing. Increases or decreases or a Ramp-up or Ramp-down in resources or requests for additional or less FTE’s are not guaranteed; once agreed to, those modifications must be in writing, and must be gradually made by 1.0 FTE per month unless otherwise agreed to in a signed writing.
5.8: Service-level Agreement
Fyin.com’s FTE allotment may include both FTE personnel as well as the execution of a Service Level Agreement (SLA). Service Level Agreements will outline the Services provided on behalf of Client by Fyin.com. Fyin.com will respond to requests for Services under an FTE or SLA Agreement in a timely and reasonable manner. Although Fyin.com is unable to guarantee issue resolution in a specified timeframe, Fyin.com will respond in a reasonable and timely manner, exercising reasonable diligence to address issues on behalf of Client.
5.9: Invoice Payment
Unless otherwise specified, invoices are payable within thirty (30) days of receipt by Client. If Client fails to pay any charges when due, Fyin.com reserves the right to charge Client interest at a rate of 1.5% of any unpaid balance per month, or the maximum amount allowed by law, whichever is lower. Discounts are forfeited if the Client is in breach of any obligations and Client will be liable for Fyin.com's hourly rate as specified in Schedule A. Fyin.com's hourly labor rate will be at a minimum of $200 per labor hour.
6.1: Work Product Compliance
Fyin.com warrants to Client that the functionality of the Work Product developed by Fyin.com will materially comply with requirements set forth in writing between Fyin.com and Client. Discrepancies between requirements and Work Products or Deliverables will be deemed immaterial if related to style, design, or functionality not specifically agreed to in writing, or where Fyin.com developers are required to use professional or reasonable judgment. Requirements will be deemed material if they fundamentally relate to key functionality of the Work Product, or if described in such reasonable detail that leaves little or no room for ambiguity.
6.2: Patents, Copyrights, and Trademarks
Fyin.com warrants that the Services and Work Product shall not infringe on any existing United States patent, registered Trademark, or Copyright existing at the time of the performance of Services. This warranty does not apply to any infringement arising out of Services performed or Work Product produced by Fyin.com and based upon specifications or designs provided by Client to Fyin.com. This warranty does not apply to any infringement arising out of 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. The warranty shall be void if Client or any third party makes any modifications to the Services or Work Products provided by Fyin.com. 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, provided that such comparable element is acceptable to Client; (iii) modify the Services or Work Product so that it becomes non-infringing provided that such modifications are acceptable to Client; (iv) refund to Client the portion of the fees, and limited to a maximum of 10% of the Client’s development costs paid within the current calendar year. Any such modified or replacement element shall conform to the Agreement made between Fyin.com and Client and shall be subject to Fyin.com's warranties contained in these Terms and Conditions. The remedy specified herein section 6.2 is Client’s sole remedy for any infringement claims.
6.3: 3rd Party Warranties
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. Fyin.com makes no warranties of any kind with respect to third (3rd) party hardware, software, or other items.
6.4: Scope of Warranties
The limited warranties set forth in this section (section 6) constitute the only warranties made by Fyin.com with respect to any Agreements, these Terms and Conditions, and between the relationship between Fyin.com and Client. 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.
7.1: Product Review
Client will have thirty (30) calendar 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 Agreement) to test, inspect, and review such Deliverable or Work Product. If a Deliverable or Work Product does not materially comply with the requirements contracted for by Fyin.com, Client may request modification of such Deliverable or Work Product by written notice to Fyin.com. Such notice must specify, in detail, the reasons the Deliverable or Work Product fails to meet the relevant functionality or requirements. Fyin.com will use reasonable efforts to correct or cure any material deficiencies and provide Client with a revised Deliverable or Work Product in a timely and reasonable manner. Client will have the right to approve or reject the corrected Deliverable or Work Product in accordance with this Section, however approval by Client shall not be unreasonably withheld.
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. Neither Fyin.com nor Client shall make any representation to any third party that is inconsistent with its status as an independent contractor. Fyin.com, as an independent contractor, shall be solely responsible for the payment of its own state and federal income taxes and self-employment taxes and the taxes of its employees and contractors, and Client shall not, under any circumstances, withhold or pay such taxes to any government agency, or be responsible to withhold or pay such taxes, except as required by law. As a further condition of this Agreement, and prior to any payment of compensation under this Agreement, Fyin.com shall complete, execute, and return to Client an Internal Revenue Service W-9 form when necessary by applicable law.
8.2: Work Hours
Fyin.com shall have the exclusive right to establish the work hours of its personnel that are providing Client Services and to control and direct the methods, means, manner, and details of performing its obligations under these Terms and Conditions and any other Agreements between Fyin.com and Client. The Client shall not direct, control, influence, or obstruct the manner in which Fyin.com, its personnel, or agents perform or execute obligations on behalf of the Client. Hours requested outside of normal business hours, to include nights, weekends, and holidays, will be recorded by Fyin.com at double the hourly rates.
9.1: Force Majeure
Neither party will be liable for any delays or failure in the performance of Services if such delay or failure is due to causes beyond 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.
10.1: Hosting / Server Management
Fyin.com agrees to perform web hosting services (if requested by Client) 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.
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.
Fyin.com will backup Client's website from time to time (if applicable). However, Fyin.com is not responsible for lost Content.
10.4: Content Stored
Any 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 as applicable.
10.5: Lawful Purposes
Client will only use Fyin.com's hardware and services as applicable 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.
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.
11.1: Defects vs. Bugs
A defect or nonconformity is a substantial deviation from a material provision in an Agreement or other signed writing between Fyin.com and Client. Any immaterial, minor, or insignificant deviation, flaw, or fault that does not substantially impact the work to be performed by Fyin.com will be considered a software bug or discrepancy and will be tracked or addressed within Fyin.com’s ticketing system. Client should expect that software creation, development, and implementation may contain software flaws or minor deviations from expected performance or design characteristics. Fyin.com will work in a reasonable and diligent manner to minimize software bugs and the impact that software bugs may have on a Client’s products or Services. Client shall have reasonable expectations that software created on Client’s behalf may not be flawless and may contain software bugs; any fixes, alterations, designs, or iterative development processes utilized by Fyin.com to remedy such bugs or discrepancies is fully within the scope of these Terms and Conditions, any Agreements, and the Services provided by Fyin.com. The existence of any software bugs or discrepancies shall in no way alleviate Client’s responsibilities to fully perform any and all obligations under these Terms and Conditions or any Agreement.
11.2: Defects and Remedies
As Client's sole and exclusive remedy for any material, nonconforming or defective Services or Work Product, Fyin.com will use reasonable efforts upon the receipt of adequate written notice, to correct or cure any such nonconformity or defect in any product or service provided by Fyin.com, in a reasonable manner and in a reasonable time. Any nonconformity or defect identified by Client must be annotated with sufficient detail within Fyin.com’s ticketing system. Client must provide a Managing Director at Fyin.com with adequate written notice of any nonconformity or defect and must reference engaging Section 11.1 within these Terms and Conditions. If Fyin.com is unable to correct or cure such nonconformity or defect in the Services or Work Product, Client may receive a refund of a portion of the fees paid, limited to and at a maximum amount of fees collected by Fyin.com within the previous thirty (30) days, and 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 thirty (30) days of completion or 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. All claims, disputes, and controversies arising out of or in relation to the performance, interpretation, application, or enforcement of this Agreement, including but not limited to breach thereof, shall be referred to mediation before, and as a condition precedent to, the initiation of any adjudicative action or proceeding, including arbitration.
11.3: Cumulative Liability
Fyin.com's cumulative liability, if any, to Client for any and all claims whatsoever related to the Services, these Terms and Conditions, an Agreement, 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 6 months of all 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, regardless of foreseeability; 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 relating to confidential information within Section 3 of these Terms and Conditions or other Agreement, Client will not be entitled to specific performance in connection with these Terms and Conditions or other Agreement.
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 are 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.
Any sales, excise, duty or other tax or fee imposed by any government authority on the Services shall be the responsibility of Client.
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, contains the entire understanding of the parties with respect to the subject matter hereof, and shall be governed by and construed in accordance with applicable state law. The laws of the State of Colorado and rules and regulations pursuant thereto shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision rendered null and void by the operation of this provision will not invalidate the remainder of this Agreement. The parties agree that all actions arising or relating to these Terms and Conditions and associated Agreements and relating to services provided by Fyin.com and the relationship of the parties shall be brought exclusively in the state and federal courts located in the state of Colorado. Fyin.com is a company registered in the State of Colorado, whose principal place of business is Denver, Colorado. Agreements will be governed by, interpreted, and enforced in accordance with applicable Colorado state law.
These Terms and Conditions supersede all prior Agreements or assertions, whether oral or written, between the parties. Fyin.com may amend these Terms and Conditions contained herein periodically and without notice.