These terms and conditions (“Terms and Conditions” or “Agreement”), dated as of the date of acceptance by Client, govern the Services (defined below) provided by Sidekick Web Studio, LLC (“Sidekick”), a Colorado limited liability company, to the customer to whom a Proposal (defined below) is addressed (“you” or “Client”).  These Terms and Conditions include and incorporate by reference each such Proposal.

Please read these Terms and Conditions carefully. Your use of any Services provided by Sidekick is conditioned on your acceptance of and compliance with these Terms and Conditions. By placing an order for the Services from Sidekick and/or using the Services you accept and agree to be bound by these Terms and Conditions. Sidekick reserves the right, at its sole discretion, to modify or replace these Terms and Conditions at any time. Contact Sidekick if you have any questions about these Terms and Conditions.

1.) Scope.  These Terms and Conditions will apply to any services (“Services”) provided by Sidekick to the Client, as more specifically defined in any Proposal, proposal, invoice, email, order form or other similar document provided by Sidekick to you (a “Proposal”). Each Proposal and these Terms and Conditions comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral with respect to the subject matter of this Agreement. In the event of any conflict between these Terms and Conditions and the Proposal, these Terms and Conditions shall govern unless expressly stated otherwise. Sidekick will provide the Services on the terms and conditions set forth in this Agreement.  Notwithstanding any other provision herein, the Services shall be limited to those set forth in an applicable Proposal, and Sidekick shall have no obligation to perform additional services unless mutually agreed to by the parties in writing. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client purchase order or in any other Client order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

All WORK shall be subject to the following:

1.) Timelines.

Notwithstanding any specific timeframe or due date set forth in a Proposal with respect to Services to be performed by, or deliverables to be provided by, Sidekick, such timeframe or due date shall be based on Sidekick’s best estimate assuming no unforeseen circumstances, and may be changed or extended by Sidekick at its reasonable discretion. If a project is dormant due to a lack of client communication for more than 6 months, a $250 project re-activation fee will be charged in order to re-start a project.

2.) Payment.

a.) In consideration of the provision of the Services, Client shall pay the fees set forth in the Proposal (the “Fees”). Fees for the Services will be invoiced in accordance with the Proposal and are due within thirty (30) days of such invoice, unless otherwise specified. If invoices are not paid within 30 days, the credit card on file for hosting will be charged automatically. Deposits, if any, are non-refundable and are due prior to the start of any Sidekick project.  Any recurring Fees identified in the Proposal, including, without limitation, hosting fees, require authorization of automatic payment by ACH or credit card through a third-party processor that Sidekick designates.

b.) Client shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Client shall reimburse Sidekick for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Sidekick does not waive by the exercise of any rights hereunder), Sidekick shall be entitled to suspend performance of any Services (including, without limitation, hosting of any websites) if Client fails to pay any amounts when due hereunder.

c.) All Fees are exclusive of any and all applicable taxes.  Client shall be responsible for all sales, use and excise taxes, and any other similar taxes associated with the Services, other than Sidekick’s income taxes.

d.) Client shall pay all amounts due under this Agreement without setoff, deduction, recoupment or withholding of any kind for amounts owed or payable by Sidekick whether under this Agreement, applicable law or otherwise.

e.) There is a 2-hour minimum billing threshold for any subsequent requested work. Our hourly rate is $125 an hour.

3.) Client Obligations.

a.) Obligations.  In addition to any obligations set forth in this Agreement, Client shall, on a timely basis:

• Provide Sidekick’s personnel with such access to Client’s computer systems, accounts and software to the extent necessary for Sidekick to perform its obligations on a timely basis;
• Provide testing support and user feedback when requested by Sidekick to ensure quality of the Services and Work Product (as defined below); and
• Provide all cooperation and assistance Sidekick reasonably requests to enable Sidekick to exercise its rights or perform its obligations under this Agreement.
  

b.) Delays in Performance.  Notwithstanding any other provision in this Agreement, Sidekick is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement. The foregoing is in addition to, and not in lieu of, all other remedies Sidekick may have for any such failure or delay by Client.

c.) Non-Solicit.  During the term of this Agreement and for one (1) year thereafter, Client shall not, and shall not assist any other person or entity to, directly or indirectly, recruit or solicit (other than by general advertisement) for employment or engagement as an independent contractor anyone then or within the prior six (6) months employed or engaged by Sidekick or any subcontractor of Sidekick. In the event of a violation of this Section 3(c), Sidekick will be entitled to liquidated damages equal to the compensation paid by Sidekick to the applicable employee or contractor during the prior one (1) year.

d.) Website Content.  If included in the description of Services, Sidekick shall update the website and other Work Product with Client Content from time to time as directed by Client. Client shall ensure that the Client Content does not infringe any applicable laws, regulations or third party rights (including, without limitation, material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights).  Client acknowledges that Sidekick has no control over any content placed on a website or other Work Product by third parties and does not purport to monitor the content of such website or other Work Product.

4.) Site Transfer & Termination.

a.) Site Transfer. Client may not (i) engage a third-party to provide services in connection with a website or other Work Product that Sidekick has developed or is maintaining as part of the Services, or (ii) transfer a website away from a Sidekick development platform account (including but not limited to Webflow, Shopify, BigCommerce, ModX, etc.), without Sidekick’s prior written permission or in accordance with the termination provisions of this Section 4.

b.) Client Termination. Client may terminate, with or without reason, any Service under this Agreement upon not less than thirty (30) days’ prior written notice to Sidekick, provided, however, that at least five (5) business days prior to the date of such termination, Client shall pay to Sidekick each of the following (the “Termination Payments”):

(i) All amounts payable by Client for Services provided through the date of termination including, without limitation, all Services that Sidekick has started but not yet completed;

(ii) All payments made as of the date of such termination by Sidekick to one or more third parties that are the responsibility of the Client as set forth in the Proposal or this Agreement;

(iii) All amounts that Sidekick has committed to pay to one or more third parties in accordance with the Proposal or this Agreement and, despite reasonable efforts, is unable to terminate such commitments.

c.) Sidekick Termination. Sidekick may terminate this Agreement, in whole or in part, with immediate effect upon written notice, if Client (i) fails to pay any amount when due under this Agreement or otherwise breaches this Agreement, or (ii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.  Client understands that any such termination may cause business disruption and Sidekick will, in no way, be held liable for consequences of such disruption. Further, Sidekick may terminate, with or without reason, this Agreement, in whole or in part, upon not less than thirty (30) days’ prior written notice to Client.

d.) Effect of Termination. In the event of a termination of Services for any reason, Client shall be solely responsible for paying the Termination Payments and transitioning all Services, websites and Work Products to another service provider, and Sidekick shall have no further obligation or liability under this Agreement including, without limitation, providing the Services, maintaining any website or assisting Client in any necessary transition. Sidekick, at its sole discretion and at Client’s sole cost, may assist Client in such transition and Client understands such transition services will be billed to Client at the prevailing rates of Sidekick.

e.) Surviving Terms.  The following provisions, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: 2, 3(c), 4(d), 4(e), 5, 6, 10-13, and 15-18.

5.) Third Party Platforms and Services.

Sidekick may from time to time in its discretion engage third parties to perform any Services provided under this Agreement. Client acknowledges and agrees that it shall be responsible for any costs associated with any update, upgrade or other adaptation or modification to the Services, and any Work Product delivered thereunder, due to the acts, or failure to act, of any third-party web browser, cloud services, and apps including but not limited to Webflow, Shopify, Amazon Website Services, Shopify Apps, or any other third party services.

6.) Intellectual Property Rights.

a.) Work Product.  Except for any Sidekick Background Content (defined below) and Third-Party Materials (defined below), Client is and will be the sole and exclusive owner of all right, title, and interest in and to the website, code and other documentation, work product and materials related thereto that Sidekick creates solely for Client in connection with the Services (the “Work Product”), including all Intellectual Property Rights therein.

b.) Client Content.  Any and all artwork, logos, graphics, video, text, data and other materials supplied by Client to Sidekick in connection with this Agreement, as well as, in the case of web site design services, the domain name or names assigned to the web site, if any, shall remain the sole and exclusive property of Client (the “Client Content”).  No Intellectual Property Rights shall be transferred from Client to Sidekick with respect to any of the Client Content except that Client hereby grants to Sidekick a worldwide, non-exclusive, fully paid-up license to copy, modify, enhance, create derivative works of and otherwise use the Client Content in any manner reasonably necessary to perform the Services and comply with its obligations under this Agreement.

c.) Sidekick Background Content.  Sidekick and its licensors are, and will remain, the sole and exclusive owners of all right, title, and interest in and to the audio, visual and audiovisual content and any other material and information in any form or media, including documents, data, know-how, ideas, specifications, and software code, that (a) were developed or otherwise acquired by Sidekick prior to the effective date of this Agreement, or (b) are generally applicable to or useable by any of Sidekick’s other customers or for Sidekick’s business in general regardless of when developed (excluding any Client Content) (collectively, the “Sidekick Background Content”), including all Intellectual Property Rights therein.  Sidekick hereby grants to Client a worldwide, non-exclusive, fully paid-up license to use the Sidekick Background Content during the term of this agreement solely as reasonably necessary to use or otherwise exploit any Work Product created hereunder and as contemplated by this Agreement. Upon termination of this agreement by Sidekick or the Client, Sidekick revokes the use of all Sidekick Background Content. Sidekick reserves all rights in the Sidekick Background Content not expressly granted to Client herein.

d.) Third-Party Materials.  The Services and/or Work Product may use, license, contain or be supported by certain data, technology, hardware or software components, Intellectual Property Rights or other materials or information that are not proprietary to Sidekick (collectively, the “Third-Party Materials”). Except as otherwise provided in the Proposal or this Agreement, the Client shall secure all necessary rights, licenses, and consents necessary for to use all Third-Party Materials as incorporated in or otherwise used in conjunction with the Work Product for the term of this Agreement; the Client agrees that it will be responsible for its compliance with the terms and conditions of such licenses or consents related to such Third-Party Materials.  All right, title, and interest in and to Third-Party Materials will remain with the respective owners thereof, subject to the licenses or sublicenses granted to Sidekick and/or Client in accordance with this Agreement and any agreements with such third parties.  Sidekick shall have no responsibility or liability for the Third-Party Materials or for the actions or omissions of any third-party.

e.) Accounts and Databases.  In the event that the Services require Sidekick to access any accounts, databases or other information (collectively, the “Client Accounts”) owned by Client or at the Client’s request, the Client represents and warrants that: (i) it has the right to grant such access to the Client Accounts to Sidekick; (ii) it has notified Sidekick of any restrictions or limitations placed on Sidekick’s access to the Client Accounts and Sidekick has agreed in writing to be bound by such restrictions and limitations; (iii) the information that Sidekick will have access to in the Client Accounts will not contain any personal information or personal data subject to the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426), or any other legislation relating to personal data that is more stringent than the applicable laws in the United States.  In addition, Client shall not provide Sidekick with any personal data or confidential information of Client or third parties without Sidekick’s prior written approval.

f.) Intellectual Property Rights Defined. For purposes of this Agreement, “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection.

7.) Sidekick Support.

Sidekick may provide ongoing support for the Services subject to the Fees set forth in your Proposal.  Any such support services will be included as part of the Services and subject to the terms of this Agreement.  If your Proposal includes the building of a website, then you will be eligible for the response time commitments as per the issue management levels set forth in the Service Level Agreement (“SLAs”) executed between you and Sidekick.   You are responsible for submitting notification to Sidekick at support@sidekickwebstudio.com in the event of any difficulties using or accessing the website built by Sidekick.

8.) Change Orders.

a.) If either party wishes to change the scope of performance of the Services, including, without limitation, electing a new credit card processing provider, implementing an upgrade to the website or other platform, or any other change to a Proposal, it shall submit details of the requested change to the other party in writing.  Sidekick shall, within a reasonable time after such request, provide a written estimate to Client of: (i) the additional time required to implement the change, (ii) the variations to the Fees for the Services arising from the change; and (iii) any other impact the change might have on the performance of this Agreement. Client acknowledges and agrees that any change to the Proposal may result in additional Fees.

b.) Promptly after receipt of the written estimate, the parties shall negotiate and agree on the terms of such change (a “Change Order”); provided, however, Sidekick shall have no obligation to agree to a Change Order requested by Client.

c.) Notwithstanding Section 8(a) and Section 8(b), Sidekick may, from time to time change the Services without the consent of Client provided that such changes do not materially affect the nature or scope of the Services, or the Fees or any performance dates set forth in the Proposal.

9.) Client’s Compliance with Laws.

Client acknowledges and agrees that it is responsible for compliance with all applicable laws relating to Client’s business, industry or trade.  Client shall provide to Sidekick any disclaimers or other legal requirements necessary for incorporation into any Work Product prior to delivery of such Work Product from Sidekick.

10.) Non-disclosure.

Each Party acknowledges that it may receive Confidential Information of the other party. “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the disclosing party considers confidential or proprietary, including, without limitation, information consisting of or relating to the disclosing party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the disclosing party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential.”  Notwithstanding any provision in this Agreement to the contrary, “Confidential Information” shall not include any document or information which: (a) is or becomes generally known or available to the public; (b) was properly known or otherwise available to the receiving party prior to the receiving party’s receipt from the disclosing party; (c) was properly disclosed by a third party to the receiving party without restriction or breach of any agreement, license, law, rule or regulation applicable to such third party; or (d) is independently developed by the receiving party without use of any Confidential Information. A party receiving Confidential Information shall not disclose any Confidential Information of the other party to any third party nor use any Confidential Information for its benefit or for the benefit of any third party, except as expressly required in connection with the Services and pursuant to the terms of this Agreement. The receiving party shall take reasonable precautions to maintain the confidentiality of all Confidential Information of the disclosing party, and in no case shall take less than commercially reasonable precautions. Upon termination of this Agreement, or upon request for any reason, each party, at the election of the disclosing party, shall immediately return or destroy all Confidential Information of the other party within its possession or control.

11.) Representations and Warranties.

Each party represents and warrants to the other that: (i) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the power and authority to enter into and perform its obligations under this Agreement; (iii) the execution or other acceptance of this Agreement by its representative has been duly authorized by all necessary corporate or organizational action of such party; and (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

12.) Limitation of Warranties and Remedies.

a.) EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT OR A PROPOSAL, IF ANY, SIDEKICK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND OR NATURE WHETHER EXPRESS, STATUTORY OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO: IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, DESIGN OR SUITABILITY, QUALITY OF SERVICE AND ANY AND ALL WARRANTIES REGARDING THE PRIVACY OF ANY OF CLIENT’S DATA, INCLUDING ON ANY WEBSITE PROVIDED HEREUNDER.  ALL SERVICES, WORK PRODUCT AND OTHER MATERIALS ARE PROVIDED BY SIDEKICK ON AN “AS IS” “WHERE IS” BASIS.

b.) NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, SIDEKICK SHALL HAVE NO OBLIGATION TO CLIENT FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES, LOST PROFITS, EXEMPLARY DAMAGES, OR PUNITIVE DAMAGES IN CONNECTION WITH ANY SERVICES, WORK PRODUCT OR OTHER MATERIALS PROVIDED BY SIDEKICK.  IN NO EVENT SHALL SIDEKICK'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SIDEKICK PURSUANT TO THE APPLICABLE PROPOSAL.

c.) NOTWITHSTANDING ANY OTHER PROVISION HEREIN, SIDEKICK MAKES NO WARRANTIES AND SHALL HAVE NO RESPONSIBILITY WHATSOEVER, INCLUDING INDEMNITY, AS TO THIRD-PARTY MATERIALS OR WITH RESPECT TO THE ACTIONS OR OMISSIONS OF THIRD PARTIES.

13.) Indemnification.

a.) Client Indemnification.  Client shall indemnify, defend and hold harmless Sidekick and its officers, directors, members, managers, employees, agents, and representatives for any and all losses, costs, damages, liabilities, claims, injuries, and expenses (including, without limitation, reasonable attorneys’ fees) for matters asserted by any third party arising out of or relating to (i) the Client Content or any content or materials posted on a website or provided by a third party, (ii) a breach of any representation, warranty, covenant or agreement made by the Client in connection with this Agreement; (iii) Sidekick’s compliance with any specifications or directions provided by or on behalf of Client unless expressly approved in writing by Sidekick; or (iv) the negligence or willful misconduct of Customer.

b.) Sidekick Indemnification.  Sidekick shall indemnify, defend and hold harmless Client and its officers, directors, employees, agents, members, managers, and representatives (each, a “Customer Indemnitee”) for any and all losses, costs, damages, liabilities, claims, injuries, and expenses (including, without limitation, reasonable attorneys’ fees) for matters asserted by any third party arising from a claim that the Services, or any Work Product, infringes or misappropriates such third party’s US Intellectual Property Rights.  The foregoing obligation does not apply to the extent that the alleged infringement arises from or relates to: (i) Third-Party Materials or Client Materials; (ii) Client’s misuse or modification of the Services or Work Product in breach of this Agreement or in violation of any usage guidelines provided by Sidekick; (iii) Client’s use of the Services or Work Product in combination with any hardware, software or information not owned or developed by Sidekick; (iv) the Client’s failure to timely implement corrections or enhancements to the Services or any Work Product made available by Sidekick, (iv) the Client’s distribution, marketing or use for the benefit of third parties of any Services or Work Product, or (v) the negligence or willful misconduct of Customer or any Customer Indemnitee.  If such a claim is made or appears possible, Client agrees to permit Sidekick, at Sidekick's sole discretion, to (A) modify or replace the Services, Work Product, or component or part thereof, to make it non-infringing, or (B) obtain the right for Client to continue use of such Services, Work Product or component or part thereof. If Sidekick determines that neither alternative is reasonably feasible, Sidekick may terminate this Agreement, in its entirety or with respect to the affected Service, Work Product or component or part, effective immediately on written notice to Client and refund to Customer all amounts paid for such Service, Work Product or component or part thereof.

c.) Sole Remedy. THIS SECTION 13 SETS FORTH CLIENT'S SOLE REMEDIES AND SIDEKICK’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND WORK PRODUCT OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

14.) Force Majeure.

No default, delay or failure to perform the Services on the part of Sidekick shall be considered a breach of this Agreement to the extent such default, failure or delay is caused by or results from acts of third parties or other circumstances beyond the reasonable control of Sidekick, or if such performance has been made commercially impracticable for any reason.  Such acts and circumstances include, without limitation, acts of God, as well as acts, or the failure to act, of the web browser provider, cloud service provider, Shopify, Webflow, Amazon Web Services, or other third party service providers; acts of God; governmental actions; telecommunication breakdown or power outages; fires; floods; earthquakes; wars; sabotage; accidents; labor disputes or shortages.

15.) Notices.

All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Proposal or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of receipt) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

16.) Export Regulation.

The Work Product may be subject to US export control laws, including, without limitation, the US Export Administration Act and its associated regulations. Client will not directly or indirectly, export, re-export or release the Work Product to, or make the Work Product accessible from, any jurisdiction or country, any country, jurisdiction or Person to which export, re-export, or release is prohibited by applicable law. Client will comply with all applicable laws and complete all required undertakings (including, without limitation, obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Work Product available outside the US.

17.) Miscellaneous.

The relationship between the parties is that of independent contractors. Client may not assign or delegate any of its rights or obligations under this Agreement without Sidekick’s prior written consent.  Sidekick may assign this Agreement, or any part thereof, upon written notice to Client. This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement shall be governed by and construed in accordance with, the laws of the State of Colorado, without giving effect to procedural rules or legal principles regarding conflicts of laws.  The District Court of the City and County of Denver, State of Colorado, shall have exclusive jurisdiction, including in personam jurisdiction, and shall be the exclusive venue for any and all controversies and claims arising out of or relating to this Agreement.  If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable.  This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party. A party’s failure to exercise any right or enforce any terms of this Agreement will not be deemed a waiver or release of any such right, term, or condition, but the same will remain at all times in effect.  In the event any suit or other action is commenced to construe or enforce any provision of this Agreement, the prevailing party shall be awarded reasonable attorneys’ fees and court costs, in addition to all other relief to which such party shall be entitled.

18.) Legal Representation and Construction of Agreement.

The parties acknowledge that this Agreement was prepared by counsel for Sidekick. The parties have had the opportunity to retain their own independent legal and financial counsel with respect to the negotiation of this Agreement. They have independently, separately, and freely negotiated each provision of this Agreement as if all parties drafted it, and therefore, waive any statutory or common-law presumption that would serve to have this document construed in favor of, or against, any party.