These Service Terms & Conditions (the “Terms”) govern the relationship between Offset Partners, LLC, a California limited liability company (“Offset”) and its clients (“You”), concerning the provision of services (the “Services”) by Offset for You. These Terms are incorporated and made part of every proposal, statement of work, or other form of order, including any web ordering form (each, a “Order”) executed by You and Offset or submitted by You to Offset.
1. Services. Offset will perform the Services described in the applicable Order in accordance with the terms thereof.
2. Fees & Expenses.
- a. Design and Other Services. You will pay the fees described in the applicable Order in accordance with the terms thereof. You will reimburse Offset for any expense reasonably incurred in connection with Offset’s provision of the Services; provided that any expense is either listed in the applicable Order or otherwise approved by You in writing.
- b. Figure Fees. Fees for our Figure® content management system, eCommerce platform, and a website framework and templates, as well as our managed-hosting and other software services (collectively, the “Figure Services”) are (unless otherwise specified in the applicable Order) billed monthly in advance and are nonrefundable. At the time of subscription to any Figure Services, You will be redirected to a payment screen which securely connects to a third-party provider’s platform, and asked to provide your bank account (ACH) and/or credit card information, which will be stored by the third-party provider, and not us. As of the last update of these Terms, we utilize Stripe and Authorize.net as our payment providers. Your provision of information to and storage of your data with that third-party is subject to its terms. You consent and authorize us to delegate authorizations and share the information You provide with our third-party service providers, to the extent required to provide the Services to You.
3. Relationship of the Parties. Offset is not Your partner, and none of Offset’s employees will be considered your employees. Offset is solely responsible for payment of its employees, and withholding and payment of any taxes with respect to such employees’ wages. You will not make any withholdings from the payments to Offset hereunder. Offset shall determine the means and manner of providing the Services.
4. Term & Termination of Orders.
- a. Generally. The term of each Order shall be specified in the Order, or if not specified, shall continue until the parties have performed the obligations required of them thereunder. Unless otherwise specified in the applicable Order, a Order may only be terminated for a party’s material breach as follows: (a) upon written notice if the breach is incapable of being cured; or (b) if the breach is capable of being cured and it is not cured by the breaching party within ten (10) days of the breaching party’s receipt of written notice describing the breach in reasonable detail.
- b. Figure Services. Unless otherwise specified in the applicable Order, You may cancel any ongoing Figure Services by providing 30-days advanced written notice via email to email@example.com. Please note that, unless You have made specific arrangements in advance of cancellation, any website(s) and related platforms utilizing our Services may cease to function or cease to function properly upon cancellation or termination of the Services. Fees for the Monthly Services may change from time to time. However, we will provide 30-days advance notice to You if You will be affected. If You breach any of your obligations in the terms or the applicable Order and fail to cure such breach within 30 days of your receipt of written notice of the breach, we may terminate your right to use the Figure Services, which may result in your websites and applications being taken offline.
5. Intellectual Property Rights.
- a. Exclusive License to Final Designs. Other than as set forth herein, each party retains all of its intellectual property rights. Offset designs logos, labels and websites for wine industry and other clients. In connection with this work, Offset reuses common elements, takes inspiration from both its past projects and the work of others, and takes into account suggestions and examples provided by its clients (collectively, such common elements, inspiration and suggestions referred to as “Common Elements”). Offset has no interest in restricting your use of the final versions of the designs that it creates for You (the “Final Designs”), but, for the reasons described above, cannot grant You outright ownership of the Final Designs. Once You have paid Offset what it is due under the applicable Order, however, Offset grants to You an exclusive license to use, reproduce, create derivative works from, display, perform, and otherwise take full lawful advantage of the Final Designs; provided that You understand and acknowledge that You may not have the exclusive usage rights of certain Common Elements included within such Final Designs.
- b. Trademark & Other Registrations. Upon your request, Offset will execute such documents as You deem reasonably necessary to apply for a trademark registration in your name for any Final Designs transferred to You hereunder; provided, You understand that Offset does not conduct trademark clearance or guarantee that any work product, including Final Designs, will not conflict with existing trademarks or registrations. For avoidance of doubt, Offset retains all rights to preliminary works and versions of the designs other than the Final Designs.
- c. Figure Licensing. Subject to your continued compliance with these Terms (including payment obligations), we grant You a license to utilize the Figure Services You have subscribed to pursuant to the applicable Order for the intended business purposes. You may not sublicense these rights, or disassemble or reverse engineer any of our platforms or technology. Any code (whether in source or object form) provided or accessible to You is licensed to You for use in connection with the Figure Services. All licenses granted above are royalty-free, worldwide, nonexclusive and unlimited, except as set forth herein.
6. Representations & Warranties.
- a. By Offset. Offset represents and warrants that: (a) it will perform the Services in a workmanlike and professional manner, consistent with industry standards; (b) the Services and, upon delivery, the Final Designs will substantially conform to any specifications agreed upon in the applicable Order; and (c) subject to Section 5 above, to Offset’s knowledge, the Final Designs will not infringe upon any third party’s intellectual property rights.
- b. By You. You represent and warrant that, to your knowledge, neither your use nor Offset’s use of the materials, content, data, and designs provided by You or on your behalf (“Your Content”) will infringe upon any third party’s intellectual property rights. You further represent and warrant that you will not provide or post on your website any unlawful, disparaging, false or misleading information.
- c. Disclaimer. Other than as expressly set forth above, (i) the Services are provided “as is”, and (ii) each of Offset and You disclaim all warranties, express, implied and statutory, including without limitation any implied warranties of fitness for a particular purpose or merchantability, and any warranties arising from the course of conduct or usage of trade.
7. Limitations. Except for damages arising from a party’s gross negligence or intentional wrongdoing, (a) neither party shall be liable, in any action arising out of or relating to any Order, the Services, and/or the Final Designs, for any incidental, special, indirect or consequential damages, even if advised in advance of the possibility thereof, and (b) each party’s maximum liability in any action arising out of or relating to any Order, the Services, and/or the Final Designs shall be limited to the amount of fees payable by You to Offset pursuant to such Order.
8. Indemnity. Subject to the limitations of Section 7, each party will defend, indemnify and hold the other party harmless from and against any third-party claim arising from a breach of any representation or warranty set forth in Section 6 above (a “Claim”) and any damages, costs or expenses (including reasonable attorney’s fees) incurred by the indemnified party in connection with such Claim; provided that, the indemnified party (a) gives prompt written notice of the Claim, (b) allows the indemnifying party to defend and settle the Claim; and (c) cooperates with the indemnifying party in connection with the Claim, and the defense and settlement thereof.
9. Non-Solicitation. Each of You and Offset agrees that, during the term of the relationship between the parties and for at least one year thereafter, neither party will, directly or indirectly, on behalf of itself or any other party, solicit, induce or recruit any of the other party’s employees. The parties agree that the breach of this provision will cause damage to that is difficult to quantify under the circumstances, but that a reasonable estimate of such damages is equal to the amount of the compensation paid to the recruited employee during the twelve months preceding the breach.
10. Confidential Information. Each party may disclose to the other certain sensitive information that is not publicly available and that is either identified as confidential or should be understood by the recipient to be confidential under the circumstances (collectively, “Confidential Information”). Each party will maintain in confidence and not use the other party’s Confidential Information, except as is necessary to perform its obligations under this Agreement. You understand that, while Your user data remains Yours, Offset may use this data for analytical purposes and to improve its services and products, and You grant Offset the right to do so.
11. Promotional Rights; Accreditation. Subject to Section 10 above, Offset shall have the right to (a) use the Final Designs and Your business name(s) in connection with its promotional and marketing activities, including on its websites, blogs and social media platforms. Furthermore, You understand that Offset may include, in a reasonable format and size, accreditation (including links) to itself on your website(s) and application(s).
12. Your Obligations. In addition to the other obligations detailed herein and in the applicable Order, You agree to provide, in a timely fashion, consolidated feedback and approvals, materials, necessary access credentials, and information as reasonably requested by Offset to enable it to perform its Services (all such obligations, including the others detailed herein and in the applicable Order, referred to as “Your Obligations”). You understand and agree that, if the case of any recurring or long delays, Offset may, in addition to any other remedies, upon written notice to You, pause performance of its Services and invoice for Services provided prior to the date of such notice. In order to recommence Services, Offset may require execution of a change order, which may include additional fees and revised schedules.
13. Your Obligations to Your Customers.
- a. Generally. It is your responsibility to ensure that You abide by your own agreements and policies relating to your customers and other users who interact with your websites powered by Figure and the features, functions and content and materials created by or for You using our Services.
- b. Applicable Laws. It is your responsibility to ensure that You comply with any obligations You have under applicable law with regard to your customers and other users, including any laws and regulations concerning privacy and data security. Use of the Services does not ensure compliance with such laws, nor is Offset responsible for your compliance with them.
- c. Consents. You are responsible for obtaining all required consents from your users in connection with any use of the Services, in accordance with applicable law, including any consent required prior to obtaining personal data.
- e. Other User Rights. You will respond to any users wishing to exercise their privacy rights under applicable law as it relates to any information collected via your use of the Services, in accordance with the requirements of such applicable law.
- f. Security Safeguards. You will use your best efforts to protect information collected from your users via our Services. In the event You discover or suspect that any user information has been compromised, stolen or inadvertently exposed to non-authorized third parties, You shall notify Offset promptly and provide details and cooperation to the extent reasonably requested by Offset.
14. Governing Law; Disputes. These Terms and all Orders (collectively referred to herein as the “Agreement”) shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law provisions. Any action arising out of relating to this Agreement, the Services and/or the Final Designs shall be brought and heard in the concomitant state or federal court for the County of Napa, California. The parties irrevocably consent to the exclusive jurisdiction of such courts, and waive all arguments and defenses concerning venue and the convenience of the forum. The substantially prevailing party in any action arising out of or relating to this Agreement, the Services and/or the Final Designs shall be entitled to its reasonable attorney’s fees, expert’s fees and costs.
15. Notices. Notices shall be in writing (including written means of electronic communication) and are effective upon receipt by an authorized representative of a party.
16. Miscellaneous. This Agreement constitutes the entire agreement of the parties concerning the subject matter hereof, and supersedes all prior agreements, understands, warranties and representations concerning such subject matter. Should any provision herein be found unenforceable by a court of competent jurisdiction, it shall be revised to the extent necessary to render it enforceable, or, if incapable of such revision, shall be severed from this Agreement, and the remainder of this Agreement shall be enforced. This Agreement is the product of negotiation between sophisticated parties, and shall not be construed in favor of or against either party.
Contacting us. If you have any questions about this Service Terms & Conditions please contact us at:
Offset Partners LLC
523 Brown Street, Napa, CA 94559
First Posted. January 31st, 2012
Last Updated. May 25th, 2018