Last updated: August 10, 2020
Please read these terms of service (“Agreement”) carefully as this Agreement, together with any STATEMENT OF WORK (“SOW”), constitutes a binding contract between the user that accepts this Agreement (“Client”) and The New Dynamic LLC, a Delaware company having its registered address at 2035 Sunset Lake Road, Suite B-2, Newark, Delaware, 19702, USA (“The New Dynamic”) governing your use of the services available.
By checking an opt-in box, clicking on “I accept” or otherwise accepting this Agreement via digital signature, or using the Services, Client acknowledges that they have read, understood, and agree to be bound by and comply with the terms of this Agreement. If Client is using the Services (“Services”) on behalf of an entity, partnership, or other organization, then Client represents that they: (i) are an authorized representative of that entity with the authority to bind that entity to this Agreement and (ii) such entity agrees to be bound by this Agreement. If Client does not agree to the terms of this Agreement, then they are not permitted to use the Services.
Client hereby retains the The New Dynamic to perform Services in connection with the website(s) (“Websites”) as set forth in each subscription or SOW, and the The New Dynamic hereby agrees to provide such Services to Client. The services include full management of your website, such as:
Content & user experience strategy
Website deployment and hosting
Website software updates
Website monitoring for performance and downtime
Implementation of third-party (“Third Party”) services
Email-based Customer support (Mon-Fri 9-5 EST/EDT)
Access to the Services may require Client to pay Fees, as may be further described at https://www.thenewdynamic.com/agile-pricing-plans/. All Fees are in U.S. dollars and are non-refundable, unless otherwise provided herein.
(a) The cost and payment schedule for Services is set forth on the applicable subscription.
(b) Charges do not include third party expenses and disbursements, including but not limited to third party software programs, which may be required to run the Websites. Client shall either pay separately for any third party software programs and updates thereof, or The New Dynamic will include the fees in Client’s invoice.
(c) The New Dynamic reserves the right to charge late fees on overdue accounts.
(d) Any additional work or material revisions beyond initial scope set forth on the SOW will be charged on an hourly basis for services performed that have been approved in advance by Client.
If Client requests changes to the Services, Client shall deliver a written change order to The New Dynamic and The New Dynamic shall submit a revised SOW to Client for written approval. The New Dynamic may cease rendering Services until the revised SOW has been approved by Client, and, if required, any additional fees are received by The New Dynamic.
For Third Party services implemented by The New Dynamic, including for the Websites' compliance with applicable laws and regulations, the Client, under its sole responsibility, hereby expressly maintains and undertakes as follows:
(b) to be aware that the services provided by the Third Parties for the compliance of the Websites are not a substitute for the professional legal advice required to ensure that the Websites does not violate any applicable laws and regulations;
(c) to be aware that the Supplier, in proposing the use of the services referred to at point b), is not providing any kind of legal advice, nor it is in any way suggesting or encouraging the Client to avoid the compliance review of the Websites by their trusted lawyer which is, on the contrary, strongly recommended.
(d) to be aware that it is the precise duty of the Client to approve in writing the contents resulting from the use of third-party services before their publication and, in any case, before their finalization;
e) to be aware that it is the Client’s precise duty to inform the Supplier of any additions and/or changes that may be necessary in relation to the contents generated via the services provided by the Third Parties. On the other hand, should the Supplier point out by its own initiative the need for any updates, it is understood between the parties that the liability for refusing such updates lies entirely with the Client, which also undertakes to indemnify and hold the Supplier harmless from any direct or indirect damage that may arise as a result of their decision;
f) to be aware that the services provided by the Third Parties are not provided by the Supplier, who, therefore, cannot in any way be held liable in relation to the proper functioning or availability, or both, of such services.
g) to indemnify and hold harmless the Supplier (and any companies controlled or affiliated with it, its representatives, directors, agents, licensees, partners and employees), from any obligation or liability, including any legal fees incurred to defend themselves in court, that may arise in relation to the content obtained and/or provided through the use of the services provided by the Third Parties.
The New Dynamic expressly reserves all Intellectual Property Rights in the Services, The New Dynamic System and all “Background Technology” provided by The New Dynamic hereunder.
For purposes of this Agreement, “Background Technology” means any materials and other intellectual property which were owned or controlled by The New Dynamic or a third party prior to its performance of Services, or are created or developed by The New Dynamic in connection with the Services but not invoiced to and/or not paid for by Client, and all enhancements, modifications, improvements and derivative works of or in respect of the foregoing that may be created or developed by The New Dynamic (whether or not created or developed in connection with the performance of any Services).
The New Dynamic hereby grants Client a non-exclusive, irrevocable, perpetual, worldwide and fully paid license to copy, modify, distribute, and use the Background Technology solely as incorporated into, any in connection with the operation of the Websites. Specifically, Client may not separate any Background Technology from the Websites for any purpose. Expressly as stated in this Section. All right, title and interest in the Services and all other materials provided by The New Dynamic hereunder, any update, adaptation, translation, customization or derivative work thereof, and all Intellectual Property Rights therein will remain with The New Dynamic or its licensors.
Acknowledging that the Services contemplated under this Agreement necessarily involve disclosure of highly confidential and proprietary information, Client shall, in furtherance of this Agreement, disclose to The New Dynamic certain non-public information pertaining to Client’s business or operations, whether or not marked as confidential (“Confidential Information”). The The New Dynamic, its members, managers, officers, agents, employees and contractors shall hold and maintain in confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as necessary to perform the Services hereunder. Notwithstanding the foregoing, Confidential Information shall not include any information that is (i) in the public domain, (ii) publicly known through no fault of the The New Dynamic, (iii) otherwise properly received from a third party without an obligation of confidentiality, or (iv) required to be disclosed to comply with applicable laws or regulations, or with a court or administrative order.
(a) The New Dynamic represents and warrants to Client that: (i) it is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and is free to enter into this Agreement and is not subject to any obligation which will or might prevent The New Dynamic from, or interfere with The New Dynamic fully completing and performing all of the covenants and conditions to be kept or performed by The New Dynamic hereunder; (ii) it warrants that the Services will be performed in a professional and workmanlike manner in accordance with recognized industry standards; (iii) to the extent Services provided by the The New Dynamic are advisory, no specific result is assured or guaranteed. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES WHATSOEVER AND EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF PRODUCTS, ETHER MADE BY THE COMPANY OR SUBCONTRACTORS OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, WILL BE DEEMED TO BE A WARRANTY BY THE COMPANY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF THE COMPANY WHATSOEVER.
(b) Client represents and warrants to The New Dynamic that: (i) Client is free to enter into this Agreement and is not subject to any obligation which will or might prevent Client from, or interfere with Client, fully completing and performing all of the covenants and conditions to be kept or performed by Client hereunder; and (ii) if Client is a corporation, limited liability company or other entity, Client is duly incorporated or organized, as the case may be, validly existing and in good standing under the laws of the applicable jurisdiction of its incorporation or organization.
(a) This Agreement shall commence upon the Effective Date set forth on the subscription agreement and shall remain effective until the agreement is terminated hereunder.
(b) Suspension for Non-Payment. The New Dynamic may temporarily suspend or terminate, or both, the Service if Client’s payment on any invoice is more than 15 days past due.
(c) This Agreement may be terminated at any time by either party upon thirty (30) days’ written notice, or the mutual agreement of the parties. In the event of termination, The New Dynamic will continue to deliver services until the current paid-for period ends.
(d) Within 90-days after expiration or termination of this Agreement, The New Dynamic shall return or, at the Client’s request, destroy the Confidential Information, except for files or documents reasonably necessary or required to be maintained by the The New Dynamic. After such 90-day period, The New Dynmaic has no obligation to maintain the Client Data and may destroy it.
(a) Notices. Any notice, offer or demand given under this Agreement, shall be in writing and delivered, postage prepaid, by certified or registered mail, return receipt requested or by email (with proof of receipt), to the party from whom it is intended at the address set forth above, and shall be deemed given three (3) days after the date it is mailed or upon receipt if emailed.
(b) Assignment. No party may assign or subcontract its rights or obligations under this Agreement without the prior written consent of the other parties, which consent shall not be unreasonably withheld.
(c) Force Majeure. No party shall be liable for failure to comply with any of the terms of this Agreement to the extent that such failure was caused by fire, flood, earthquake, storm damage, power-outage, war, insurrection, pandemic, government restrictions, or other causes beyond that party’s control; provided, however, the non-performing party commences performance within 30 days of the cessation of the event causing non-performance.
(d) Governing Law; Venue. This Agreement shall be governed by, enforced and interpreted and construed in accordance with the laws of the State of Delaware, without regard to principles of conflict of laws. The parties hereto agree that any legal suit, action, or proceeding arising out of or relating to this Agreement shall be brought exclusively in Delaware. The parties hereto hereby accept the jurisdiction and venue of such courts for the purpose of any such action or proceeding.
(e) Severability. Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.
(f) Headings. The headings in the Agreement are for convenience only and shall not be used to interpret or construe any provisions of this Agreement.