Factotum & Design Services

Terms of Service

These Terms of Service (“TOS”) are legally binding on all Clients of Factotum & Design Services (“FDS”).

1. Acceptance of Terms; Binding Contract

The TOS constitute a binding agreement between FDS and you (“Client”). The TOS apply to all services and products, and related support and consulting services and products (each a “Service” and collectively “Services”), made available by FDS to Client pursuant to the specifications of a Client agreement with FDS (“Client Agreement”), or a Client purchase order submitted by Client in connection with this Agreement (“Purchase Order”) for the term specified in such Purchase Order (“Initial Term”), and all renewals and/or extensions as set forth in this Agreement (collectively, the “Term”). FDS’s acceptance of any Purchase Order is expressly conditioned upon Client’s assent to this Agreement. By accepting the terms of this Agreement, electronically or in writing, or by otherwise using the Service or the Services, including, but not limited to, the submission of materials, information and/or content to FDS for FDS’s performance or rending of Services, or making payment and/or authorizing payment to FDS, Client agrees to be bound by the TOS set forth in this Agreement. Client also agrees that Client’s electronic acceptance of this Agreement shall have the same force and effect as if Client had agreed to the TOS set forth in this Agreement in writing. No terms or conditions set forth in Client’s Purchase Order, to which notice of objection is hereby given, or in any further correspondence between Client and FDS, shall alter or supplement this Agreement unless both FDS and Client have expressly agreed in writing to modify this Agreement. Neither FDS’s commencement of performance nor completion of Services shall be deemed or construed as acceptance of Client’s additional or different terms and conditions. FDS reserves the right to reject any Purchase Order or to cancel any Purchase Order previously accepted if FDS determines that Client is in breach of any term or condition set forth in this Agreement.

FDS provides its services to Client subject to this Agreement, which may be updated from time to time without notice. Client may review the most current version of the TOS at https://factotum0.yolasite.com/Terms/. By using FDS’s Service or Services, Client agrees to (and hereby signs) the most current version of the TOS. If Client does not expressly reject the TOS at the point of sale, Client agrees to (and hereby signs) the TOS and FDS is instructed to commence work on Client’s projects as if Client had expressly accepted the TOS. If Client expressly rejects the TOS set forth in this Agreement at the point of sale, FDS has no obligation to enter into a Client Agreement or Purchase Order, and may refuse to enter into a Client Agreement or Purchase Order.

2. Description of Services

FDS supplies consultation services, and provides other design related services, including, but not limited to, support and modification models, schematics, and additional design related services. Client understands that FDS’s Services may include certain communications from FDS such as advertisements, notices, service announcements and newsletters. Client is responsible for obtaining access to FDS’s Services that may involve third party fees. Client also is responsible for all equipment and software necessary to access FDS’s Services.

3. Electronic Delivery Policy

FDS communicates with its Clients electronically. When a Client accepts the TOS, Client consents to receive electronically any notices, progress reports, agreements, disclosures, or other communications (“Notices”) from FDS. Client agrees that FDS may send Notices in any of the following ways: (1) to the email address provided by Client to FDS at the time of sale; or (2) to the new email address account Client establishes through FDS. Client agrees to check the designated email addresses regularly for Notices. All Notices from FDS are effective at the time they are sent by FDS, regardless of whether the Notice is read or received by Client.

4. Privacy Policy

Personal data and certain other information about the Client are subject to FDS’s Privacy Policy. For more information see the privacy policy at https://factotum0.yolasite.com/Terms. By using FDS’s Services Client also agrees to the most current version of FDS’s Privacy Policy.

5. Confidential Information

Client acknowledges and agrees that any information or ideas submitted to FDS by any means may be used by FDS without compensation or liability to Client for any purpose whatsoever, including but not limited to, enhancing its Services, developing websites, databases, e-commerce and developing, manufacturing and marketing other products. This provision does not apply to Client content or to personal information that is subject to FDS’s Privacy Policy.

Client hereby gives permission to FDS to use samples or links to Client’s website designed or marketed by FDS for marketing and advertising purposes, including but not limited to, use in FDS’s online portfolio and social media websites.

6. Call Monitoring and Recording Privacy Statement

As part of FDS’s commitment to providing its Clients with the best possible service, FDS may monitor and record telephone calls to and from FDS. FDS also may archive recorded voice mail messages. FDS records telephone calls for training purposes, to improve customer service, and to ensure an accurate record of Client calls, which may be needed to support transactions that take place over the telephone. FDS undertakes such actions in order to enable it to identify how to better serve its Clients.

7. Unacceptable Practices

As FDS strives to offer the very best Services, there are certain guidelines and policies that must govern FDS’s efforts and relationships with its Clients. Practices that are in violation of these guidelines and policies are forbidden and will result in the immediate termination of FDS’s Services. Client acknowledges and agrees that FDS has sole discretion over decisions regarding compliance with these guidelines and policies. Unacceptable practices include, but are not limited to:

• Adult or pornographic material including, but not limited to, sexually explicit or suggestive material

• Sexually oriented products or material

• Nudity, including airbrushing (exceptions granted on a case-by-case basis if for medical or artistic purposes)

• Offensive or otherwise distasteful material

• Bulk emailing tools

• Distribution of internet viruses or other harmful or destructive activities

• Gambling, gaming, lotteries, and similar activities

• Harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, racial, chauvinistic, ethnically offensive or otherwise objectionable content or language

• Defamatory, hateful or revenge content or language.

• Content or language that is harmful to minors in any way

• Illegal activities such as Ponzi schemes, fraudulent charging of credit cards, copyright violations, plagiarism, software piracy, and all unauthorized use of materials or content that infringes on third parties’ intellectual properties

• Intentional or unintentional violations of any applicable local, state, national or international law.

• Reselling email accounts or hosting accounts to third parties

• Reselling of any FDS services including, but not limited to, design services and updates to third parties without a written re-seller agreement.

• Spamming and all other forms of unsolicited messages including, but not limited to, spam, pyramid schemes, chain letters, and junk email

• Links to other sites that are in violation of FDS’s policies and guidelines

• Other activities, whether lawful or unlawful, that FDS deems to be in poor taste or that reflect adversely on FDS or FDS’s other clients

• FDS reserves the right to refuse to design or host an account at its sole discretion at anytime.

As a FDS Client, you agree to conduct your business in a legal and professional manner. As a FDS Client, you acknowledge and agree that all information, data, text, software, music, sound, photographs, video, messages and other material (Content) is the sole responsibility of Client. Client is fully responsible for all content and agrees to hold FDS harmless in the event of third parties’ legal issues brought against Client for Client’s business practices. FDS retains the right to terminate any accounts that are in violation of the letter or spirit of this TOS. At its sole discretion and at any time, FDS may discontinue providing Services, or any part thereof, with or without notice. If an account is terminated by FDS for a TOS violation, Client is not eligible for a full refund and any refund is subject to the Termination/Cancellation of Services Policy. (See Termination/Cancellation of Services)

Client acknowledges that FDS may access, preserve, and disclose Client’s account information and content if required to do so by law or in a good-faith belief that such access, preservation, or disclosure is reasonably necessary to comply with legal processes, enforce the TOS, provide customer service or protect the rights, property, or safety of FDS and the public.

8. Intellectual Property Policy

FDS respects copyright laws and the intellectual property of others. FDS may terminate Services and/or accounts for copyright infringement.

FDS will not use patented materials on any Client’s design without the express written consent of the patent owner. It is Client’s responsibility to ensure that all deigns submitted to FDS is original design and free from third-party patent protection, or to obtain permission to use patented materials from the patent owner. Client assumes full liability for any infringement of any third-party’s patent rights as a result of the use of protected materials on Client’s designs.

(See Unacceptable Practices)

Client design that is sent to FDS will remain the intellectual property of Client. FDS does not return original design to Client. Unless a request to return the original design to Client is made in writing upon submission of the design, the design will be destroyed. FDS will attempt to honor requests to return original design, however, FDS has no liability and does not guarantee the return of any design to Client.

9. International Use

Recognizing the global nature of the Internet, Client agrees to comply with all local rules regarding online conduct and acceptable content. Specifically, Client agrees to comply with all laws regarding the transmission of technical data exported from the United States, or the country in which Client resides and/or transacts business.

10. Interstate Communications

Client acknowledges that by using FDS’s Services Client will be causing communications to be sent through FDS’s computer networks, which may be located throughout the United States. Due to the nature of electronic communications, even communications that seem to be intrastate can result in the transmission of interstate communications. Client acknowledges that use of FDS’s services results in interstate data transmissions.

11. Progress Reports

FDS shall contact or meet with Client on a mutually acceptable schedule to report all tasks completed, problems encountered, and recommended changes relating to the development and testing of the design. FDS shall inform Client promptly by telephone or e-mail upon discovery of any event or problem that may delay significantly the development of the design work.

12. Developers Guarantee for Program Use

FDS agrees to notify Client of any licensing and/or permissions required for programs to be used.

13. Changes/Revisions

FDS agrees to provide any and all Services, including but not limited to, the model design services, pursuant to the specifications contained in the original terms of sale. Any additions or changes to Services requested by Client that are outside of or beyond the scope of the original terms of sale will be billed to Client at FDS’s standard hourly rate ($150/hour), and Client agrees to pay all charges billed for such additions or changes. FDS is not obligated to complete any additions or changes to Services requested by Client that are outside of the scope of work contained in the original terms of sale. If FDS does not agree to the Client’s requests for additions or changes to Services, Client still is obligated to pay all fees incurred and due. With respect to the design and modeling, Client will be provided two (2) opportunities to alter the proposed design after delivery of the concept designs by FDS to the Client for review, and two (2) opportunities to alter the proposed design after all user requirements and functional requirements have been completed by FDS.

14. Testing and Acceptance Procedures

FDS will make a good faith effort to test all deliverables thoroughly and make all necessary corrections as a result of such testing prior to sending the deliverables to Client. Upon receipt of the deliverables, Client shall either: (1) accept the deliverables and make the required milestone payment set forth therein; or (2) provide FDS with written or e-mail notification of any corrections Client requires, and a suggested date for completion of required corrections. The suggested date for completion of required corrections shall be reasonable and mutually acceptable to both FDS and Client. FDS and Client shall each designate one representative as the designated person who will send, receive, and accept all deliverables and communications between FDS and Client. Neither FDS nor Client shall have any obligation to consider for approval, or respond to, communication, deliverables, or materials submitted by any person other than the designated person. Both FDS and Client each have the right to change its designated person upon two (2) days’ notice to the other.

15. Client Approval

Client is responsible for testing and approving the functionality of all Services, upon FDS’s request and notification that the Services have been completed. Client’s responsibility includes, but is not limited to, testing the functionality of all Services. Upon Client’s approval of the Services, Client agrees and acknowledges that Services have been rendered by FDS and the suitability of the design has been tested and approved by Client.

Client acknowledges and agrees that if Client does not respond within five (5) business days to FDS’s request for approval and notification that the Services have been completed, the Services, along with the functionality of the Services and services rendered, will be deemed to be approved by the Client, and the Services will be accepted “as-is”.

Client acknowledges and agrees that if Client does not respond to requests by FDS for missing or incomplete information, a final notification and/or request will be sent to Client. If Client does not respond within five (5) business days to FDS’s notification or requests for missing information, the, along with the suitability of the Services and the services rendered, will be deemed to be approved by the Client, and the Services will be accepted with the missing or incomplete information “as-is” or “under construction”.

16. Warranty Period and File Maintenance

FDS agrees to provide Client with reasonable technical support and assistance to maintain and update the Services during a warranty period of sixty (60) days after release of the Services (“Warranty Period”). Such technical support and assistance will be provided at no charge to Client for up to a total of two (2) hours. For technical support and assistance provided to Client by FDS beyond two (2) hours, Client agrees to pay FDS at its standard hourly rates ($150/hour). After the expiration of the Warranty Period, Client may enter into a new agreement with FDS for Services maintenance (“Maintenance Agreement”) wherein FDS agrees to provide reasonable technical support and assistance to Client to maintain and update the Services for an agreed upon hourly fee. Any such fee will be due and payable when billed pursuant to the TOS. Such maintenance shall include correcting any errors or any failure of the Services to conform to the specifications and the development of enhancements to the originally contracted project. The Warranty Period shall not include the development of enhancements to the website expressly considered by Section 10 of the TOS.

17. Enhancements

If Client enters into a Maintenance Agreement with FDS, Client agrees that if Client wishes to modify and/or enhance the Services and/or website, Client will give FDS the option to submit a bid or proposal to perform such modifications and/or enhancements prior to accepting or soliciting any competing bids or proposals.

18. Technical Support

FDS’s support department can be contacted at support@factotumdesign.net for any concerns with Client accounts or any problems with hosting or functionality of the Services after the Services are complete.

If Client uses FDS’s support services, including but not limited to screen share sessions, Client acknowledges and understands that FDS does not warranty that technical support services will meet Client’s requirements or be error free. (See Disclaimer of Warranties and Limitation of Liabilities.)

19. Customer Service

FDS strives to offer the best service available. Customer service complaints or concerns should be emailed to support@factotumdesign.net.

20. Use and Storage

Client acknowledges that FDS may establish general guidelines and limits concerning the use of FDS’s Services and may modify these guidelines at any time. Limits may include but are not restricted to, the maximum number of days that email messages or other content will be retained (90 days), maximum number of email messages that may be sent from or received by an account, the maximum size of any email messages sent and the maximum disk space that will be allotted on FDS’s servers on Client’s behalf. FDS periodically backs up the data it hosts. However, Client acknowledges that FDS is not responsible for backing up Client’s data. Client should seek appropriate backup solutions. Changes made by Client or by FDS may be lost if data loss occurs after a scheduled backup by FDS.

21. Internet Access

Access to the Internet will be provided to Client by a separate, third-party Internet Service Provider (ISP). Client is solely responsible for entering into and maintaining any contract for service with an ISP. The ISP is not a party to this agreement.

22. Marketing Representations

FDS makes no representations as to the marketing of Client’s products, services or sales. Client’s obligation to pay fees due to FDS are due at time of sale of website design, marketing and hosting services and are not contingent upon Client’s marketing of said website. Client is responsible for all marketing of Client’s website.

23. Billing Policy

All prices quoted in a Client Agreement or Purchase Order are subject to this Agreement. Unless otherwise stated in writing by FDS, all prices quoted in a Client Agreement or Purchase Order are exclusive of transportation, insurance, and federal, state, local, excise, value-added, use, sales, property (ad valorem) and similar taxes or duties now in force or hereafter in effect, as applicable. In addition to the prices quoted in a Client Agreement or Purchase Order or invoiced, Client agrees to pay all taxes, fees, or charges of any nature whatsoever imposed by any governmental authority on, or measured by, the transaction between Client and FDS. In the event that FDS is required to collect such taxes, fees, or charges, such amounts will appear as separate items on FDS’s invoice and will be paid by Client.

The initial Services set-up fee is due and billed in-full at the time of the original sale. (Installment payments may be accepted for the set-up fee only if agreed to in writing pursuant to the original invoice.) Monthly hosting and other Services plans are billed and due upon transmission of the invoice. The Client hereby authorizes FDS to renew and bill monthly service fees every 30 days, unless the Client cancels in writing after the initial services commitments have been paid.

FDS reserves the right to change prices at any time including hosting amounts and hourly design fees.

FDS accepts payment via wire transfer, check, credit card and EFT debit from Client’s bank account. Upon Client’s authorization of payment to FDS via credit card, or EFT debit payment, Client thereby authorizes all recurring monthly hosting and/or additional Services fees to be charged to the same method of payment, credit card or EFT account for future charges until such authorization is withdrawn by Client in writing.

The Client may change payment methods including credit card and EFT debit payments with 30 days’ notice. To change payment methods Client shall contact FDS’s billing department. Client should not email new billing information for security purposes.

24. Billing Disputes

FDS charges up to a $25.00 fee for returned checks and a $200.00 fee to handle unauthorized credit card disputes. If FDS does not receive payment in full when due, FDS may, to the extent permitted by the law of the state of the billing address on file for Client at the time, charge a late fee of up to 1.5% per month (18% per annum), or a flat fee of $5 per month, whichever is greater, on any unpaid balance. FDS may, to the extent permitted by the law of the state of the billing address on file for Client at the time account is sent to a collection agency, also charge Client for any collection agency fees and/or attorney’s fees billed to FDS for collecting unpaid amounts due and owing from Client. FDS will not honor limiting notations made by a Client on a check.

If Client wishes to dispute a charge, Client must first contact FDS’s billing department and must allow ten (10) business days for a response. To avoid any dispute about Client’s attempt to contact FDS, Client must send the request in writing to:

Attn: Billing Department, Factotum & Design Services [ADDRESS]. Requests may be emailed to billing@factotumdesign.net. If Client chooses to send request by email, a copy of the request must also be sent by mail as confirmation. If Client initiates a credit card dispute the decision of the credit card company is made through an arbitration process and the decision of the credit card company shall be binding upon Client. (See Arbitration)

25. Termination/Cancellation of Services

FDS, at its sole discretion, may terminate its Services and remove and discard any content, for any reason, including and without limitation, for lack of use, or if FDS believes Client has violated the TOS. FDS may also, at its sole discretion and at any time, discontinue providing Services, or any part thereof, with or without notice. Client agrees that any termination of access to FDS’s Services under any provision of this TOS may be effected without prior notice and that FDS may deactivate or delete Client’s account and all related information files. Client agrees that FDS shall not be liable to Client or any third-party for any termination of Services. Paid accounts that are terminated will not be refunded. In addition, accounts that become 30-days delinquent may be terminated. FDS also reserves the right to discontinue the designing of Client’s website at any time, at FDS’s sole discretion, with an appropriate refund to the Client. Under no circumstances is the refunded amount to exceed the amount collected by FDS.

If the Client cancels a Service or Services before the work is completed or the Services are in process, a cancellation fee is retained per the Cancellation Fee and Refund Policy. Client agrees that all fees incurred and billed prior to the effective date of cancellation are valid and Client agrees to pay them. Upon request for cancellation of Services, the Services will be cancelled. A back-up copy of the data is not maintained by FDS.

Client agrees to pay all hosting fees and additional services fees, owed from the time of sale until the effective date of cancellation, and at a minimum for hosting fees for one year. Client must notify FDS in writing or via email to terminate the Services and avoid further monthly hosting charges. It is Client’s responsibility to secure confirmation from FDS that the request for termination has been received and no further hosting fees will be billed.

Requests for cancellation of Services should be sent to the following address: Attn: Billing Department, Factotum & Design Services [ADDRESS].

Requests may be emailed to billing@factotumdesign.net. If Client chooses to send a request by email, a copy of the request must also be sent by mail as confirmation.

26. Cancellation Effective Date

Client may cancel Services with 45-days’ written notice. The effective date of cancellation will be 45-days from the date of FDS’s receipt of written notice to cancel Services. Any monthly fees scheduled to bill after receipt of written notice to cancel, but before the effective date of cancellation, are valid and Client agrees to pay such amounts. Client is required to pay FDS for one-year of hosting Services. This requirement must be satisfied even if Client elects to cancel Services within the first year of a Client Agreement or Purchase Order. Client’s cancellation of Services does not release Client from its obligation to pay FDS for one-year of hosting Services. Also, as previously stated in Section 29, if Client elects to cancel a monthly storage contract prior to the conclusion of a specified term of months (e.g., a 24-month term), Client acknowledges that it will be charged and must pay for the monthly storage contract through the end of its term. (For example, if Client enters into a 24-month storage contract, and Client cancels the contract at the conclusion of the 11th month, Client will owe and agrees to pay FDS for the remaining 13-months of the contract.)

If Client has not paid all fees due for Services, such fees are due in full at the time of cancellation and Client authorizes FDS to collect any outstanding fees due, subject to the Cancellation Fee and Refund Policy. Client acknowledges and agrees that any and all pending billing for design fee installments previously agreed to will not be cancelled.

27. Default, Cancellation and Refund Policy

In the event that Client is in breach or default in payment for the Services, Client shall be responsible for all reasonable costs and expenses incurred by Client in collection of any sums owing by Client (including reasonable attorneys’ fees), and FDS may decline to render further Services to Client without in any way affecting its rights under this Agreement. If, despite any such breach or default by Client, FDS elects to continue to render the Services, rendering the Services shall not constitute a waiver of any breach or default by Client or in any way affect FDS’s legal remedies arising from such breach or default.

DESIGN/DEVELOPMENT SERVICES – Refunds of fees paid for development of services may be issued on accounts cancelled within 15 days of the initial sale and prior to the completion of the design according to the following schedule:

A) A minimum of a 25% cancellation fee will be retained by FDS on cancelled accounts even if no work has been started and no content has been submitted by Client.

B) A minimum of a 50% cancellation fee will be retained by FDS on cancelled accounts if work has been presented to Client; or FDS has made multiple attempts to work with Client, and Client has not responded to those attempts.

C) A 100% cancellation fee will be retained by FDS and NO REFUND issued if any changes and/or modifications requested by Client have been completed by FDS. No Refund will be issued on any design service cancelled after services have been rendered, including but not limited to, the design work having been completed.

D) 100% cancellation fee will be retained and NO REFUND will be issued by FDS if Client cancels after 90 days from the initial sale.

MINIMUM CANCELLATION FEE – Client agrees that a minimum cancellation fee of 25% will be retained by FDS on all cancelled accounts even if no work has been started. The cancellation fee is charged to compensate FDS for up-front expenses and services rendered, including but not limited to, securing server space, creating the temporary space saver, employee expenses, and overhead costs.

ENHANCEMENT SALES – A 100% cancellation fee will be retained by FDS and NO REFUND will be issued once work has begun on any enhancements purchased. Client agrees that a minimum cancellation fee of 50% will be retained by FDS on all cancelled enhancement purchases if cancelled within 90-days of the enhancement sale and if work has not yet begun. NO REFUND will be issued by FDS if Client cancels after 90-days from the enhancement sale. Enhancements or additional services purchased after the initial sale are separate purchases and are in addition to and separate from the original sale. If a Client cancels an enhancement the original sale is not cancelled.

MONTHLY HOSTING – Client agrees that there is NO REFUND of monthly hosting fees or monthly additional services fees incurred or paid by Client prior to cancellation date.

Client agrees that all fees incurred and billed prior to cancellation date are valid and Client agrees to pay. (See Termination).

28. Copyright Protection

Client is advised to copyright and protect all final art against duplication or alteration. FDS is not responsible for any Client’s copyrightable material.

29. Factotum & Design Services’ Proprietary Rights

Client acknowledges and agrees that FDS’s Services may contain proprietary and confidential information that is protected by intellectual- and proprietary-rights laws. Client agrees to not reproduce, duplicate, copy, sell, resell or exploit any portion of FDS’s Services or proprietary or confidential information. FDS does not provide direct access, through File Transfer Protocol or other means, to any proprietary technology.

30. Use of Client Information

Client hereby agrees that any information or ideas submitted to FDS by any means may be used by FDS without compensation or liability to Client for any purpose whatsoever, including but not limited to, developing websites, databases, e-commerce and developing, manufacturing and marketing other products. This provision does not apply to Client content or to personal information that is subject to FDS’s Privacy Policy.

Client hereby gives permission to FDS to use samples or links to Client’s custom website designed by FDS for marketing and advertising purposes, including but not limited to, use in FDS’s online portfolio.

31. Third-Party Services

From time to time third parties may offer services to FDS’s clients. Use of such third-party services will be at Client’s own risk and subject to the terms and conditions of those third parties. Third-party services are the responsibility of and shall be paid by Client to its chosen provider. FDS does not represent or warrant that use or access to any third-party services will be compatible, uninterrupted, error free, without defects or that Client will be able to access FDS’s services. Client also agrees that FDS is under no obligation to provide Client with any enhancements, updates, or fixes to make FDS’s services accessible through any third-party applications.

32. Contract Service Providers

FDS may contract with Contract Service Providers to complete a portion, or all, of the Client’s custom website and/or Services. The Client agrees not to do business directly with the Contract Service Provider, nor to remit payment to the Contract Service Provider or any FDS employee directly for services. All payments for services rendered must be made directly to FDS. Contract Service Providers are required to enter into employment contracts and to follow company policies and procedures. Contract Service providers are provided with only the information needed to complete the design or development portion of the Client’s Services and/or website and do not have access to Client’s personal information including payment information.

33. Disclaimer of Warranties

CLIENT’S USE OF FDS’S SERVICES IS AT CLIENT’S OWN RISK. FDS’S SERVICES ARE PROVIDED “AS IS”. FDS DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. FDS DISCLAIMS ANY WARRANTIES REGARDING FDS’S SERVICES INCLUDING THAT THEY WILL MEET CLIENT’S REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. FDS DISCLAIMS ANY WARRANTIES REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF FDS’S SERVICES, INCLUDING RESULTING SALES AND WEB TRAFFIC. FDS DISCLAIMS ANY WARRANTIES REGARDING THE MARKETING OF CLIENT’S PRODUCTS, SERVICES, SALES, OR WEBSITE. FDS DISCLAIMS ANY WARRANTIES REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED, ADVERTISED OR OBTAINED THROUGH FDS’S SERVICES, OR LINKS PROVIDED BY FDS’S SERVICES, AS WELL AS FOR ANY INFORMATION OR ADVICE PROVIDED BY FDS OR OBTAINED THROUGH LINKS PROVIDED THROUGH FDS’S SERVICES.

CLIENT UNDERSTANDS AND AGREES THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF FDS’S SERVICES ARE DONE AT CLIENT’S OWN RISK AND THAT CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO CLIENT’S COMPUTER SYSTEM OR LOSS OF DATA OR OTHER LIABILITY THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. THE ABOVE EXCLUSIONS MAY NOT APPLY TO CLIENT.

34. Limitation of Liability

CLIENT UNDERSTANDS AND AGREES THAT FDS, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AND EMPLOYEES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, (EVEN IF FDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM THE USE OF OR INABILITY TO USE FDS’S SERVICES, RELIANCE ON FDS’S SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF FDS’S SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES.) THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM PRODUCTS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED THROUGH FDS’S SERVICES OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF CLIENT’S DATA OR TRANSMISSIONS AND ANY STATEMENTS OR CONDUCT OF A THIRD PARTY OR ANY OTHER MATTERS RELATING TO FDS’S SERVICES. SUCH LIMITATION SHALL FURTHER APPLY, WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED IN ANY WAY TO FDS’S SERVICES.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CLIENT.

Without limiting the foregoing, under no circumstance shall FDS be liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, or other casualties, illness, accidents, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light or air conditioning. FDS’s full and complete liability, for any reason whatsoever, shall be limited to the full refund of all monies paid to FDS.

35. Tort Claims

Client waives all tort claims against FDS, its subsidiaries, affiliates, officers, employees and agents. The relationship between the parties is contractual in nature only. Client waives any tort claims that arise by act, or omission.

36. Indemnification

Client agrees to defend, indemnify and hold harmless FDS, its directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees that may arise or result from any content Client submits, posts, transmits or makes available through FDS’s Services, from any product sold by Client, its agents or employees or assigns, from any Services provided or performed or agreed to be performed by FDS or from Client’s violation of the TOS or Client’s violation of any rights of another, whether such rights arise by statute, common law, contract, or otherwise. Client further agrees to defend, indemnify and hold harmless FDS, its directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising from or related to contracts, representations, agreements, promises, etc., made between Client and third parties, or arising from or related to Client’s negligence toward third parties.

37. Other Operating Systems Conversions

FDS shall be given first option at compiling the work for operating systems beyond the original use.

38. Unauthorized Use and Program Licenses

Client will indemnify FDS against all claims and expenses arising from uses for which Client does not have rights to or authority to use. Client is and will be responsible for payment of any special licensing or royalty fees resulting from the use of graphics programs that require such payments.

39. Notice

Unless otherwise specifically provided, all notices required or permitted by the TOS shall be in writing and in English and may be delivered personally, or may be sent by email, facsimile or certified mail, return receipt requested, to the address set forth below. If Client chooses to send request by email or facsimile, a copy of the request must also be sent by mail (to the address below) as confirmation of the request.

Factotum & Design Services

[ADDRESS]

[ADDRESS]

40. Severability

In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of the TOS shall remain valid and enforceable according to its terms.

41. Jurisdiction

The TOS agreement shall be governed by the laws of the State of Michigan. All legal proceedings are to be submitted exclusively to the jurisdiction of the courts in the State of Michigan, County of Macomb.

42. Arbitration

In lieu of litigation, Client agrees to binding arbitration if requested by FDS. Arbitration will be through the Better Business Bureau or other neutral third-party Arbitrator to be selected by FDS. If Client initiates a credit card dispute the decision of the credit card company is made through an arbitration process and the decision of the credit card company shall be binding upon Client. (See Billing Disputes)

43. Governance

FDS may investigate any reported violations of this agreement, its policies or any other complaints and take any action it deems appropriate to protect its systems, facilities, Clients, and/or third parties.

44. Electronic Signatures

Selecting and submitting “accept” on the electronic copy of the TOS, submitting content through the DMP, making payment, or submitting information or documents to FDS so that FDS may perform services for the Client, the same shall constitute an electronic signature.

45. General Information

This Agreement constitutes the entire understanding and contract between the parties and supersedes any and all prior oral or written agreements (including, but not limited to, any prior versions of the TOS). Any modifications to this agreement must be in writing and signed by an authorized officer of FDS. All representations not in writing are null and void. Written agreements may include, but are not limited to, emails and electronic acceptance of this TOS.