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Website Development Agreement

8bitcreative, LLC

Updated: September 10^th, 2023

PLEASE READ THIS AGREEMENT CAREFULLY, IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, INCLUDING, WITHOUT LIMITATION, TERMS AND CONDITIONS RELATED TO WARRANTY DISCLAIMERS, LIMITATION OF LIABILITY, LIMITATIONS ON PERIODS FOR ASSERTING ANY CLAIMS, INDEMNIFICATION, GOVERNING LAW AND THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

This Website Development Agreement (the “Agreement”) is an agreement between 8bitcreative, LLC (“8bitcreative,” “we,” “our,” or “us”) and you, or the entity you represent (“you”, “your”, “customer”). This Agreement governs your use of the website 8bitcreative develops for you and our Services (as defined below). This Agreement is effective when you use or access the Services, or otherwise indicate your acceptance of the Agreement. 

1.    Scope of Work

a.    Agreement Documents. This Agreement between 8bitcreative and you includes: (i) any statement of work or other similar document issued by 8bitcreative to you (“Statement of Work”); (ii) 8bitcreative’s Privacy Policy available here; and any additional specifications or documentation regarding the Services that are made available by 8bitcreative via the detailersroadmap.com website (“Our Website”)(collectively, the “Agreement Documents”). Your initial invoice will include a Statement of Work which shall describe the Services and any other material terms to which the parties agree. In the event of any conflict between this Agreement and any of the other Agreement Documents, the terms of this Agreement shall control. You agree that this Agreement supersedes all previous agreements between you and 8bitcreative.

b.    Website Development. Subject to your payment obligations and compliance with this Agreement, 8bitcreative creates, develops, tests, hosts, and maintains a website that markets your services and/or products as set forth in an applicable Statement of Work (the “Services”). The Services are conducted in phases as set forth in Section 1(b)(i) or as otherwise stipulated on an applicable Statement of Work. A general description of timelines for the completion of such phases may be set forth in the Statement of Work and subject to your payment of the non-refundable Development Fees. Any timelines stipulated in the Statement of Work are estimates only.

i.    Theme Selection. 8bitcreative shall provide you with website themes created by 8bitcreative, which include the overall design, color scheme, and layout to be incorporated into your website. You shall select a theme for your website (the “Theme Selection”). You are solely responsible for delivering to 8bitcreative those logos, graphics, photographs, images, videos, or other visual materials, of such resolution and file-type as 8bitcreative reasonably requires, and those written materials, including reviews, terms, policies, testimonials, biographies, and summaries of your history, business model, services, and products that you desire 8bitcreative to incorporate into the website and/or 8bitcreative reasonably requests for the creation and development of the website (collectively, “Customer Materials”). You shall deliver Customer Materials to 8bitcreative in the manner directed by 8bitcreative. We assume no responsibility for monitoring any of the Customer Materials for inappropriate submissions or conduct. We have no obligation to modify or remove any inappropriate Customer Materials. Notwithstanding the foregoing, 8bitcreative and its designees shall have the right to remove any Customer Materials that violate this Agreement or are otherwise objectionable, in our sole discretion. Customer Materials may not include any content that is illegal, offensive, harassing, violent, sexual, or that 8bitcreative otherwise determines, in its sole discretion, may harm the reputation of 8bitcreative. 8bitcreative shall not be responsible for any delays in providing the Services to the extent caused by your failure to timely provide Customer Materials to 8bitcreative.

ii.    Initial Development. After Theme Selection and delivery of Customer Materials, 8bitcreative shall create and develop an initial draft of the website (the “Website Draft”) and provide you access to the Website Draft for your approval. Thereafter, you shall deliver to 8bitcreative written: (A) approval of the Website Draft; or (B) comments, corrections, and/or other feedback necessary for 8bitcreative to make your reasonably requested revisions. You shall be deemed to have approved the Website Draft if you fail to provide 8bitcreative with notice of suggested revisions for the Website Draft prior to the expiration of the deadline set forth by 8bitcreative.

iii.    Revisions. In the event you timely notify 8bitcreative of your rejection of the Website Draft, 8bitcreative shall utilize commercially reasonable efforts to revise the Website Draft as soon as possible. Upon completion of such revisions, 8bitcreative shall provide you access to the revised Website Draft for your approval. Thereafter, you shall deliver to 8bitcreative written: (A) approval of the revised Website Draft; or (B) comments, corrections, and/or other feedback necessary for 8bitcreative to make your reasonably requested revisions, and in such event, 8bitcreative shall make further revisions for your review. If you determine, in your reasonable discretion, that the Website Draft is not acceptable after two (2) rounds of revisions by 8bitcreative, you may terminate this Agreement, however, you will not receive a refund of the Development Fee. You shall be deemed to have approved the revised Website Draft if you fail to reject the revised Website Draft prior to the expiration of the deadline set forth by 8bitcreative.

iv.    Testing. After approval of the Website Draft, 8bitcreative shall prepare the website for launch by conducting commercially reasonable quality assurance testing.

c.    Domain Name. Prior to completion of the quality assurance testing set forth in Section 1(b)(iv), you must procure and thereafter maintain the domain name, at your sole expense. You are solely responsible for selecting, procuring, and maintaining the domain name for your website, and 8bitcreative shall have no liability whatsoever for such selection and maintenance of your domain name. 8bitcreative reserves the right to reject any domain name that 8bitcreative determines, in its sole discretion, to be illegal, offensive, harassing, violent, sexual, or that may harm the reputation of 8bitcreative. 8bitcreative shall not be responsible for any interruptions in hosting caused by your failure to maintain the domain name, and any such interruptions shall not abate the Monthly Fee due hereunder. You shall promptly notify 8bitcreative of any change in the registered details for the domain name for the website.

d.    Hosting and Maintaining the Website. 8bitcreative shall notify you upon completion of the quality assurance testing on the website and shall confirm that the initial hosting of the website has begun (the “Website Launch”). You acknowledge and agree that the website will be hosted through a third-party cloud hosting provider. Subject to your compliance with this Agreement and your payment of the Monthly Fee to 8bitcreative, 8bitcreative shall oversee the hosting and maintenance of the website and provide support services as set forth in the Statement of Work for such website for a period of at least one (1) year from the date of the Website Launch and continue for the duration of any Renewal Period(s) as set forth in this Agreement. For the avoidance of doubt, maintenance of the website does not include any rewriting of the website following the Website Launch, provided, however, that 8bitcreative will adjust sections of the website or add additional language that you provide utilizing your allotted web development hours set forth in the applicable Statement of Work. You are solely responsible for the marketing, advertising, and promoting your website.

e.    Renewal Period Updates. During each Renewal Period, 8bitcreative shall provide 6 hours of website development time in order to make changes and updates to the website. Should you require additional changes and updates outside of such 6-hour allotment, 8bitcreative shall make changes and updates reasonably requested by you at 8bitcreative’s standard hourly rate (“8bitcreative’s Rate”) made available on Our Website or as otherwise specified on an applicable SOW. 8bitcreative reserves the right to change the 8bitcreative Rate at any time in our sole discretion. To the extent your requested changes and updates exceed the timeframes set forth in the applicable Statement of Work, you will be responsible for paying 8bitcreative for the excess time at the 8bitcreative Rate within seven (7) days of your receipt of an invoice from 8bitcreative. Any unused website development time from a Renewal Period will not carry over into a subsequent Renewal Period. In the event of early termination of this Agreement, except for termination pursuant to 8bitcreative’s material breach of the Agreement, you shall immediately pay 8bitcreative the total fees for any excess website development time provided by 8bitcreative during such applicable Renewal Period.

f.     Changes in Project Scope. If you desire to implement modifications to the website after completion of any phase set forth in Section 1(b), including modifying your Theme Selection, you shall deliver a written proposal specifying such modifications including all reasonable details requested by 8bitcreative. Thereafter, 8bitcreative will evaluate such proposal and respond in writing with: (i) a proposed updated timeline schedule; (ii) additional Customer Materials needed to complete such modifications; and (iii) the total additional costs for such modifications. You shall promptly accept or reject the response in writing. If you accept 8bitcreative’s response, you shall remit the additional costs immediately along with additional Customer Materials, if any, and thereafter, the parties shall proceed through the applicable remaining phases set forth in Section 1(b) in accordance with 8bitcreative’s updated deadline schedule. If you reject 8bitcreative’s response, 8bitcreative shall not be obligated to perform any work beyond its original requirements in this Agreement or as set forth in the applicable Statement of Work.

g.    Delays. 8bitcreative shall use all reasonable efforts to meet the timelines set forth in an applicable Statement of Work. At its option, 8bitcreative may extend the timelines up to fourteen (14) days by providing written notice to you. In the event of any delay caused by you, including your failure to timely deliver Customer Materials, the timelines for the applicable phases shall be extended by one day for each day that you cause a delay. In the event your delay continues for more than thirty (30) days, 8bitcreative shall have the right, at its option, to terminate this Agreement by delivering written notice to you. In such event, 8bitcreative shall be entitled to retain the non-refundable Development Fee.

2.    Subcontractor

a.    8bitcreative may subcontract the creation, development, testing, hosting, and/or maintenance of the website or any portion of the Services without your prior written consent; however, 8bitcreative will endeavor to notify you of 8bitcreative’s election of a subcontractor.

3.    Third Party Service Providers

a.    You acknowledge and agree that 8bitcreative may utilize products or services provided by third party service providers or subcontractors, including third party hosting providers as set forth in Section 1(d) (“Third Party Services”) in order to provide the Services. You further acknowledge that: (i) the third party provider may make changes to the Third Party Services or components thereof, or suspend or discontinue the Third Party Service with or without notice; (ii) the availability of the Third Party Services may also depend on your compliance with any terms and conditions, terms of use, or other agreements, whether click-wrap, browsewrap, scrollwrap, online, written, or otherwise, that apply to any Third Party Services (“Third Party Terms”). In addition, you acknowledge and agree that the Third Party Service providers, may have access to Customer Materials or other data collected through the website (if any), and may require 8bitcreative to provide information about you or Customer Materials to the Third-Party Services provider. You agree and consent to our provision of such information. We are not responsible for how any Third Party Services providers provide service, their actions or omissions, or for how they transmit, access, process, store, use, collect, share, or provide data. 8bitcreative expressly disclaims all liability related to or arising from any Third Party Services, including liability related to or arising from any updates, modifications, outages, delivery failures, corruption of data, loss of data, use of data, inaccurate data, security, discontinuance of services, or termination of the Third Party Services.

b.    Disclaimer. 8bitcreative makes no representation or warranties with respect to any Third Party Services, including but not limited to third-party products, service, or software provided or utilized by 8bitcreative in connection with the delivery of Services. 8BITCREATIVE PROVIDES NO REPRESENTATIONS, WARRANTIES, OR COVENANTS RELATED TO ANY THIRD PARTY SERVICES AND DISLCLAMS ALL LIABILITY RELATED TO THE USE OR INABILITY TO USE ANY THIRD PARTY SERVICES.

4.    Term and Termination

a.    The term of this Agreement shall continue until the first anniversary of the initial invoice (as may be extended, the “Term”). If this Agreement has not been terminated earlier in accordance with the provisions of Section 4(b), at the end of the initial Term or any twelve (12) month Renewal Period, the Term shall be extended automatically for an additional twelve (12) month period (each, a “Renewal Period”) unless either party provides written notice of non-renewal to the other party at least thirty (30) days prior to the last day of the Term or any Renewal Period, as applicable. 

b.    Either Party may immediately terminate this Agreement (i) if the other Party materially breaches this Agreement and such breach is not cured within 30 days of receipt of written notice of such breach, or (ii) in the event of the other Party’s bankruptcy, insolvency, liquidation, dissolution, receivership, or assignment for the benefit of creditors. 8bitcreative may terminate this Agreement at any time for any reason upon sixty (60) days written notice to you. Any provision that by the very nature of which should survive, shall survive the termination of this Agreement.

5.    Payment

a.    Fees. You shall pay 8bitcreative the fees set forth on the applicable Statement of Work in accordance with the payment terms herein or as otherwise set forth on the Statement of Work. In addition, you shall promptly reimburse 8bitcreative for out-of-pocket expenses pre-approved in writing, incurred by 8bitcreative in connection with this Agreement. Payments shall be made in the manner as reasonably directed by 8bitcreative.

b.    Development Fee. Within seven (7) days of receipt of an applicable Statement of Work, you must pay 8bitcreative the flat-fee payment set forth on the Statement of Work (the “Development Fee”). The Development Fee is non-refundable and non-creditable against other fees set forth in this Agreement.

c.    Monthly Fee. After the Website Launch and for the duration of the initial Term and any subsequent Renewal Period(s), you pay 8bitcreative the monthly hosting maintenance fee (the “Monthly Fee”) set forth on the applicable Statement of Work. During each Renewal Period, the Monthly Fee shall automatically update to the rate published on Our Website at the beginning of such Renewal Period. If no such rate is published, then the Monthly Fee shall remain fixed at the rate in effect at the end of the initial Term, or the end of the prior Renewal Term, as applicable. If you fail to pay the Monthly Fee by the fourteenth day of any month, 8bitcreative may cease hosting the website until you have paid the outstanding Monthly Fee(s) together with the late fee and interest payment set forth in Section 5(d) and the re-hosting fee in the amount then in effect as published on Our Website.

d.    Late Payments. During the initial Term, any late payments or reimbursements shall be subject to a late fee in the amount of $50.00, and all unpaid amounts shall bear interest at the lesser of: (i) eighteen percent (18%) per annum; or (ii) the maximum rate of interest allowable under applicable law, which interest, in either case, shall be deemed to accrue effective as of the date such payment was originally due. During a Renewal Period, the late fee and interest rate shall automatically update to the late fee and interest rate published on Our Website at the beginning of such Renewal Period. If no such late fee and/or interest rate is published, then the late fee and/or interest rate shall remain fixed at the amount and/or rate in effect at the end of the initial Term, or the end of the prior Renewal Period, as applicable.

e.    Taxes. The payments of compensation shall not be subject to withholding for federal, state, or local taxes, including withholding for FICA contributions. You shall pay 8bitcreative for all applicable federal, state and local sales, use, value added, excise, duty and any other taxes of any nature (except any tax based on 8bitcreative’s net income) assessed on the Services and/or the website, including taxes any government agency assesses on tangible personal property acquired by 8bitcreative for use by you, including, but not limited to, film, photographs, illustrations and printing.

6.    Use Restrictions

a.    You shall not (nor shall you facilitate, direct, or assist a third party to):

i.    Reproduce, revise, republish, or rehost the website or any 8bitcreative Content at any time without the express written permission of 8bitcreative.

ii.    Use the website or Services in any manner that could damage, disable, overburden, disrupt or impair any 8bitcreative servers or APIs, or any networks connected to any 8bitcreative server or APIs, or that could interfere with any other party's use and enjoyment of any websites or Services.

iii.    Transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature through your use of website or Services.

iv.    Exceed or circumvent, or try to exceed or circumvent, limitations on the website or Services, or otherwise use the website or Services in a manner that violates any 8bitcreative documentation or this Agreement.

v.    Attempt to gain unauthorized access to any website, account, computer system, or networks connected to any 8bitcreative server or to any of the websites or system through hacking, password mining, or any other means.

vi.    Obtain or attempt to obtain any materials or information through any means not intentionally made available through Our Websites, the website or through the Services.

vii.    Use the website or Services in any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).

b.    8bitcreative may provide login credentials to you in order for you to monitor basic analytics of the website, including the website traffic. You shall not disclose the login credentials to any other third party, except solely as necessary for authorized employees to access and monitor the website analytics. You are solely responsible for the security and confidentiality of your login credentials and any actions that occurs under your login credentials. You must notify 8bitcreative of any unauthorized use or disclosure of the login credentials.

7.    Ownership

a.    Website. Except as otherwise stated on a Statement of Work, the website shall be the sole and exclusive property of 8bitcreative. Subject to your compliance with this Agreement (including all payment obligations), 8bitcreative grants you a limited, non-transferable, non-licenseable, revocable right to access and utilize the website during the term of the Agreement solely for your personal or business purposes. Upon termination of this Agreement, you shall no longer have access to the website. To the extent the website, or any portion thereof, is deemed “work made for hire,” you hereby irrevocably assign all right, title, and interest in and to the website, including all patent, copyright, trade secret, trademark, and any other proprietary rights in the website to 8bitcreative. You shall at the request of 8bitcreative execute all documents as are reasonably required to vest the website ownership in 8bitcreative.

b.    8bitcreative Content. You acknowledge that 8bitcreative may incorporate its own content, including, without limitation, graphics, photographs, images, themes, videos, or other visual or any other written materials or content (“8bitcreative Content”) into the website. 8bitcreative retains all right, title, and interest in and to the 8bitcreative Content. You further acknowledge that 8bitcreative has spent significant time in creating, developing and/or procuring the 8bitcreative Content and may utilize the 8bitcreative Content with any of 8bitcreative’s other customers. You may not use, reproduce, make available, copy, create derivative works from, and/or display 8bitcreative or Third-Party Content outside of the website.

c.    Third-Party Content. 8bitcreative may incorporate graphics, photographs, images, videos, or other visual or written materials developed by third-parties (“Third-Party Content”). Such Third-Party Content is the property of the applicable third party and you retain no rights to the Third-Party Content.

d.    Customer Materials. You retain all right, title, and interest in and to the Customer Materials. You grant 8bitcreative a nonexclusive, royalty-free, worldwide right and license to use, reproduce, and/or display Customer Materials for the purposes of providing the Services.

e.    8bitcreative Tools. 8bitcreative utilize various tools to perform the Services or creates in connection with the Services, including, without limitation, ideas, concepts, technologies, marketing collateral, data, information, and research and analysis (“8bitcreative Tools”). 8bitcreative retains all right, title, and interest to the 8bitcreative Tools.

8.    Warranties

a.    Customer Warranties. You represent and warrant: (i) you have the legal right and authority to enter into this Agreement and provide the Customer Materials; (ii) your performance and the rights granted to 8bitcreative hereunder shall not conflict with or violate any commitment or agreement you have with any other person or entity; (iii) your performance of your obligations under this Agreement and your use of the services shall not violate any applicable law; (iv) you have all necessary rights to or complete ownership of the Customer Materials, and the Customer Materials, and 8bitcreative’s use thereof, will not infringe on the intellectual property rights or violate any other rights of any third-party.

b.    Disclaimer. EXCEPT AS OTHERWISE EXPLICITLY STATED HEREIN, THE WEBSITE, SERVICES, AND 8BITCREATIVE MATERIALS ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY AND NONINFRINGEMENT. 8BITCREATIVE DOES NOT WARRANT THAT ANY PART OF THE SERVICES WILL OPERATE UNINTERRUPTED OR ERROR FREE, THAT THE SERVICES ARE SECURE, COMPLY WITH LAW, THAT DEFECTS WILL OR CAN BE CORRECTED, OR THAT THE WEBSITE, THE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT TRANSMISSION TO OR FROM THE WEBSITE AND SERVICES AND ACCESS TO THE WEBSITE AND SERVICES WILL BE UNINTERRUPTED, CONTINUOUS, OR ERROR-FREE. YOU AGREE THAT YOUR USE OF THE SERVICES AND WEBSITE IS AT YOUR OWN RISK. 8BITCREATIVE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING TRAFFIC TO THE WEBSITE OR THAT THE WEBSITE OR SERVICES WILL CONFORM TO YOUR SPECIFIC NEEDS.

9.    Indemnification

a.    You shall defend, indemnify and hold harmless 8bitcreative, its affiliates and any of their respective shareholders, directors, officers, agents, and other representatives from all losses, claims, demands, orders, damages, penalties, fines, costs, fees (including reasonable attorneys’ fees) settlement payments, liabilities, expenses (collectively, “Losses”) relating to or arising from: (i) your violation of this Agreement including any breach of any warranty or representation within this Agreement; (ii) your negligent, reckless and/or willful misconduct; (iii) your violation of any Third Party Terms; (iv) your violation of any applicable law or (iv) infringement of any copyright, trademark, patent, trade secret or other intellectual property rights by any Customer Materials or any designs or specifications provided by you to 8bitcreative. 8bitcreative shall give Customer notice of any such Losses, and Customer shall have the right to participate in the defense of any such Losses at its expense. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to fully cooperate with our defense of such claim.

10. Limitation of Liability

a.    IN NO EVENT SHALL 8BITCREATIVE BE LIABLE TO CUSTOMER FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION, OR FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED IN WARRANTY, CONTRACT, INDEMNITY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DAMAGES OR LIABILITY ARISING FROM CUSTOMER’S INDEMNITY OBLIGATIONS UNDER SECTION 9 AND CUSTOMER’S OBLIGATIONS UNDER SECTION 7, THE MAXIMUM LIABILITY OF EACH PARTY, ITS DIRECTORS AND OFFICERS TO THE OTHER PARTY FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND THE OTHER PARTY’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE GREATER OF: (I) THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO 8BITCREATIVE UNDER AN SOW FOR THE SERVICES GIVING RISE TO THE CLAIM DURING PRIOR SIX (6) MONTH PERIOD; OR (II) $1,000.00.

b.    NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT OR ANY STATEMENT OF WORK MAY BE COMMENCED BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION HAS OCCURRED.

11. Dispute Resolution

a.    Governing Law. The construction, interpretation, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin, excluding its conflict of laws and choice of law rules, and jurisdiction over any action to enforce this Agreement, or any dispute arising from or relating to this Agreement shall subsist solely in the state and/or federal courts located within the County of Waukesha or Milwaukee respectively, State of Wisconsin.

b.    Arbitration. If we have not been able to resolve the dispute informally within thirty (30) days after both parties received notice of the dispute, we both agree to resolve any claim, dispute or controversy arising out of or in connection with or relating to this Agreement by binding arbitration conducted pursuant to the JAMS Streamlined Arbitration Rules and Procedures that are in effect at the time the arbitration is initiated (referred to as the “JAMS Rules”). Unless we both agree otherwise, the arbitration will be conducted in the same city as our offices. Each party will be responsible for paying any filing, administrative and arbitrator fees in accordance with the JAMS Rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitration, along with all filings and decisions, will be confidential except as necessary to enforce the award. The parties agree that the arbitrator’s decision will be final and binding. Further, no party shall commence or seek to prosecute or defend any dispute, controversy, or claim based on any legal theory arising out of or relating to this Agreement, or the breach thereof, other than on an individual, non-class, non-collective action basis. THIS MEANS THAT YOU AND 8BITCREATIVE ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND 8BITCREATIVE ARE WAIVING THE RIGHT TO A TRIAL BY JURY.

c.    Exceptions. Notwithstanding the foregoing provisions, each party retains the right to bring an individual action in small claims court or to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property.

12. Security

a.    We implement security procedures designed to help protect Customer Materials from security threats. However, you understand that your use of the Services necessarily involves transmission of Customer Materials over networks that are not owned, operated, or controlled by us, and we are not responsible for any of Customer Materials that are lost, altered, intercepted, or stored across such networks. You acknowledge and agree that no data stored on or transmitted over the internet can be guaranteed to be 100% secure. 8bitcreative is not responsible for any security breach or any interception or interruption of Customer Materials or any communications that Customer sends to 8bitcreative pursuant to this Agreement.

13. Publicity

a.    8bitcreative may: (1) state on the website that 8bitcreative developed the website, including by placing the logo of 8bitcreative on the website; (2) place hypertext links on the website to Our Website; and/or (3) place hypertext links on Our Website to the website as an example of 8bitcreative’s Services. In the event 8bitcreative includes Content on the website, 8bitcreative may additionally: (i) attribute the Third-Party Content to its creator by displaying the name and/or logo of such creator on the website; and/or (ii) place hypertext links on the website to a Third-Party Content creator’s website.

14. Independent Contractor / Employee Solicitation

a.    8bitcreative is and shall remain at all times an independent contractor and nothing in this Agreement shall be deemed to create a joint venture, partnership, or agency relationship between the parties. 8bitcreative does not, under any circumstances, approve or endorse any of Customer’s services or products referenced on the website. 8bitcreative has no obligation to work any particular hours or days and shall be solely responsible for the means and methods for carrying out the work specified in this Agreement. Neither party has the right or authority to assume or to create any obligation or responsibility on behalf of the other. Neither party shall represent itself as the agent or legal representative of the other.

b.    During the term of this Agreement and to the extent permissible under applicable law, neither party will directly or indirectly solicit or recruit for hire any individual who is or was employed by the other party and who provided or received Services for or from the other party under this Agreement until one (1) year following the termination of the individual’s involvement in providing or receiving Services. If either party engages in conduct in violation of the foregoing sentence, such party will pay the other party a fee equal to six (6) times the monthly salary for such individual.

15. Force Majeure

a.    8bitcreative shall not be liable to you or any other party for any delay or failure in performance due to events outside of our reasonable control, including without limitation, acts of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, pandemic, fire, flood, earthquake, storm or other like event, disruption or outage of third-party communications facilities or networks, labor strike, delays of common carriers, or any other circumstances beyond our reasonable control. 

16. Entire Agreement

a.    The Agreement constitutes the entire agreement between you and 8bitcreative relating to the subject matter herein, and supersede all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.

17. Severability

a.     If any term or condition of this Agreement, or the application of any term or condition to any person or circumstance, shall be deemed invalid or unenforceable, the remaining terms or conditions of this Agreement, or the application of the terms or conditions to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each term and condition shall be valid and enforceable to the fullest extent permitted by law.

18. Notices

a.    All notices shall be in writing and shall be deemed duly given (i) on the date of delivery if delivered personally, (ii) on the date sent by electronic mail if sent during normal business hours of the recipient during a business day, and otherwise on the next business day, if sent after normal business hours of the recipient, or (iii) two (2) business days after being mailed by United States certified mail, postage prepaid, return receipt requested, to a party at that party’s address identified below. If a party changes address, such party shall notify the other of the new address.

19. Waiver

a.    No delay or omission by any party in exercising any right or power arising out of any default under any of the terms or conditions of this Agreement shall be construed to be a waiver of the right or power. A waiver by a party of any of the obligations of the other party shall not be construed to be a waiver of any breach of any other terms or conditions of this Agreement.

20. Binding Effect and Assignment

a.    This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement may not be assigned by you to any other party without the prior written consent of 8bitcreative. Any attempt to transfer or assign this Agreement without such written consent shall be null and void.

21. Headings

a.    The headings used in this Agreement are intended solely for purposes of identifying the various paragraphs and subparagraphs contained herein and are for the convenience of the parties hereto. Such headings are in no way intended to describe, interpret, define, or limit the scope of this Agreement or any of the paragraphs or subparagraphs hereto or the intent of the parties hereto.

22. Changes to This Agreement

a.    8bitcreative reserves the right, in its sole discretion, to update, revise, supplement and to otherwise modify this Agreement, and to impose new or additional terms and conditions. Such updates, revisions, supplements, modifications and additional rules, policies, terms and conditions shall be effective immediately and incorporated into this Agreement upon notice thereof, which may be given by any reasonable means including by posting updates to this webpage and changing the “Last Updated” date at the top of this webpage.  Your continued use of the Services following the posting of changes to this Agreement will mean you accept those changes.

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