Terms and conditions
The client's signed invoice, signed agreement or electronically confirmation or approval to contract work from Xperience LLC (herein after Xperience Marketing Solutions or Xperience) signifies the client has read, understood and agrees to the following terms and conditions.
Client agrees to pay in full for all work designed and/or produced by Xperience Marketing Solutions for which they have placed an order.
Xperience Marketing Solutions requires 50% of the total order to be paid in advance before work is started on any project. This deposit is nonrefundable once work has begun. Payment terms may change, and they will be reflected on the proposal or invoice.
The remaining 50% balance must be paid in full upon completion of the work contracted. All payments must be made in U.S. Dollars unless specify otherwise on the invoice. (Only applicable for approved countries where Xperience has an office.)
Xperience Marketing Solutions will do everything possible to make sure Client is 100% satisfied with the work contracted. Xperience Marketing Solutions will make changes if applicable as stated on the terms agreement. After the final approval of the work completed, the job will be considered done and any new requests or changes will be new orders.
Xperience will not turn in all the files until the balance has been paid in full.
Client understands that Xperience will design, develop or complete the work based on the directions or outlined stated on the signed invoice or terms agreement. Xperience will perform the work the best of their ability on understanding the client´s desires.
If Xperience fails to follow the written website outline or written directions provided by Client, Xperience will redesign the work to the specification of the client.
Additional terms for changes will be stated on the signed invoice or working agreement. Xperience may choose to make any additional changes on the website design, only with prior approval from Client and Xperience management. Any additional changes or additions to the website outside the scope of work contained herein will have to be paid by the client. Xperience shall notify the client about the costs of the additional changes or additions prior to making any of these changes or additions. Xperience will use its own professional stock photos if needed. If client desires to use other specific professional photos, client will be responsible to pay all applicable fees.
Xperience Marketing Solutions and the Client must work together to complete the work requested in a timely manner. Xperience Marketing Solutions agrees to work in a professional and expeditious manner to complete the work requested once the Client has submitted all necessary materials and information. If the Client fails to supply Xperience Marketing Solutions with materials and information needed to complete the work requested within 30 days of the effective date listed on the signed invoice, proposal or agreement, the entire deposit amount of the agreement shall be retained by Xperience Marketing Solutions and the project will be considered as liquidated, unless the work requested is canceled in writing by the Client prior to 30 days of the effective date of the signed invoice, proposal or agreement. Any project cancellation is subject to a 10% cancellation fee or a minimum of $250. (If any of work has begun the deposit is not refundable.)
The final web site design project will be published to the Client's hosting service upon receipt of final payment. Hosting services require a separate contract with the hosting service of the Client's choice, whether us or another provider. The Client agrees to select a hosting service which allows Xperience Marketing Solutions full access to the Client's account via FTP (File Transfer Protocol). The Client will be solely responsible for any and all hosting service charges.
Work requested Copyrights.
Copyright to the finished work produced by Xperience Marketing Solutions will be owned by client once payment is made in full. Rights to photos, graphics, source code, work-up files, and computer programs specifically are not transferred to the Client and remain the property of their respective owners. Xperience Marketing Solutions and affiliates companies will be able to display graphics and other elements as examples of their work in their respective portfolios. All Work requested by client may contain a link to Xperience Marketing Solutions' Design Services Web Site.
Notwithstanding anything to the contrary contained in this contract, neither Xperience Marketing Solutions nor any of its employees or agents, warrants that the functions contained in the Work requested will be uninterrupted or error-free. The entire risk as to the quality and performance of the Work requested is with the Client. In no event will Xperience Marketing Solutions be liable to the Client or any third party for any damages, including, but not limited to, service interruptions caused by Acts of God, the Hosting Service or any other circumstances beyond our reasonable control, any lost profits, lost savings or other incidental, consequential, punitive, or special damages arising out of the operation of or inability to operate this Work requested, failure of any service provider, of any telecommunications carrier, of the Internet backbone, of any Internet servers, client's visitor's computer or Internet software, even if Xperience Marketing Solutions has been advised of the possibility of such damages.
The original agreement constitutes the sole agreement between Xperience Marketing Solutions and the Client regarding their Work requested. Any additional work not specified in the contract or any other amendment or modification to this contract must be authorized by a written request signed (or electronically signed) by both Client and Xperience Marketing Solutions.
Any legal action due to violation of this contract and or copyright violations will result in financial cost, fines, court costs, and miscellaneous expenses, and will be the sole responsibility of the client as set by the laws of the United States. Client hereby releases Xperience Marketing Solutions from any and all legal actions or monetary settlements arising from violation of this contract. Xperience shall not be liable for delays in performance of this Agreement occasioned by any natural causes or any other causes beyond its control.
NO OTHER WARRANTIES
XPERIENCE REPRESENTS AND WARRANTS THAT IT SHALL PERFORM ALL ITS DUTIES HEREUNDER IN GOOD FAITH AND IN A PROFESSIONAL, WORKMANLIKE MANNER, COMPLIANT IN ALL RESPECTS WITH APPLICABLE LAW. EXCEPT AS EXPRESSLY PROVIDED HEREUNDER, NEITHER PARTY MAKES ANY WARRANTY WHATSOEVER.Â XPERIENCE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES THAT COULD BE IMPLIED IN CONTRACT, IN LAW OR IN EQUITY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
Limitation of liability
In no event shall Xperience be liable for any special, indirect, incidental, punitive, or consequential damages (including lost profits), even if it has been advised of the possibility of such damages. Xperience´s liability for any material breach of this agreement shall be limited to the actual cost incurred by Client for completing and/or correcting Xperience´s work under this Contract.
- Warranty and Remedies. Xperience warrants that the Data be as current, accurate and complete as may be achieved using the source data and data processing methods normally employed by Xperience and its data partners in the ordinary course of its business; provided, however, the Data and the Xperience Services are not warranted as being error free. THE FOREGOING IS A LIMITED WARRANTY AND XPERIENCE, LATIN XPERIENCE MAKES AND CLIENT RECEIVES NO OTHER WARRANTY, EXPRESS OR IMPLIED. ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED.
- Manner of Use: Client agrees that it will use the data in accordance with all federal, state, and local laws applicable and relevant to Direct Marketing Associations Guidelines. The data shall not be duplicated, retained, or reused for any other purpose. The data may not be used to enhance a file or list owned by any third party, to develop any list, or to prepare, publish or maintain any directory. Xperience and the CLIENT hereby declare that in the carrying out of its activities they comply, in all cases, with any obligations under European law on the protection of personal data and its automated treatment, and demands and verifies, in the case of possible interventions by third parties (personalizers, manipulators of personalized deliveries), their compliance with said obligations.
- Client Obligations: The CLIENT agrees and warrants that he has no reason to believe that the legislation applicable to him prevents him from fulfilling his obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the guarantees provided by the Clauses, he will notify the change to Xperience. The obligations of the CLIENT with relation to the data and information provided by Xperience, are as follows:
To Use them solely for the purposes ser out in the order form.
Not disclose, assign, rent nor let them be available to third parties, directly or indirectly, partly, or fully, against payment or free of charge. Are understood included within third parties any company, either affiliates, joint companies, partly-owned, etc. juridical or economically linked to the CLIENT.
To destroy or send back the support/s, once it/they has/have been used or the period for using them stated in the order form ended.
To update them when Xperience notifies him that it is necessary to do it, which shall occur when a user exercises his right to amend or cancel.
To notify Xperience the data (at least name and full address) of the data subjects who are willing to cancel or amend some of their data and only notified it to the CLIENT. If he requires appointing a company rendering processing services (i.e. of personalization or mail distribution), Xperience allows the delivery of the file to such company, although in an agreement at least the obligations included in Art. 12 of the LOPD shall be stated.
Not to reproduce them, neither free of charge or against payment.
Not to reuse them beyond the use/s agreed upon herein, except when a right to use has been acquired on a telephone address. In this case, the address can be reused as many times it is required for obtaining a reply from the consumer.
To process the personal data in accordance with the mandatory data protection principles and to implement appropriate technical and organizational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing. Having regard to the state of the art and the cost of their implementation, such measures shall ensure a level of security appropriate to the risks represented by the processing and the nature of the data to be protected.
To deal promptly and properly with all reasonable inquiries from Latin Xperience, or the data subject relating to his processing of the personal data and to cooperate with the competent supervisory authority in the course of all its inquiries and abide by the advice of the supervisory authority with regard to the processing of the data. Not to collect any data from the data subjects included in the data base.
- Limitation of Liability. Xperience´s liability for any claim, regardless of the form of action, whether in contract, tort, or negligence, for any damages resulting from or in any manner connected with the Data or Xperience Services, shall be limited to the lesser of (i) Client´s actual direct damages related thereto, or (ii) the amount of the fees paid by client for the Data or Xperience Services which are in error. In no event shall Xperience be liable for any other damages whether indirect, incidental, special, or consequential including, but not limited to, lost business and lost profits, whether foreseeable or not, even if advised of the possibility of such damages.
- Indemnity. Client agrees to indemnify and hold Xperience harmless from and against any claim made by any third party which arises from or is in any way connected with the use of any Data, or the performance of any services by client. The obligations of client under this Section shall survive any termination of this Agreement.
- Permitted Use of the Data. The Data may be used solely for one single mailing.
- Seeding: All Data is seeded to detect any unauthorized use or duplication thereof.
- Cancellation Charges: Cancellation charges include: $100.00 processing cancellation fee. $8.00/M run charge for records processed, and all customer formatting and data processing changes fees, if applicable.
- Acceptance and Delivery: The order is conditional on Xperience acceptance. The amount of information to be delivered to the CLIENT will depend on the potential of the selection present in the data base at the date of the order and not at the date of the initial offer. The CLIENT shall state in the order form the address for delivery. Xperience may claim from the CLIENT that this later bears the costs arising from a mistake of delivery attributable to an action or omission of this later. In all cases, the risk of loss or damage shall be understood as transferred to the CLIENT from the moment when the delivery takes place. In no case will a late delivery give rise to an indemnity for damages. Should a late delivery of an order be due to a case of force majeure, the CLIENT may not annul it. Considered as force majeure, inter alia, for this purpose strike or temporary unavailability of the computer system.
Xperience & CAN-SPAM Act
Compliance Notice to our Customers, Advertisers, Agencies Affiliates, Partners and Others.
The CAN-Spam Act introduced to the congress on 2003 was signed by the President on Dec 16, 2003. It went into effect on January 1, 2004.
Xperience welcomes the new Federal Legislation and we ensure our full compliance to the Act. Furthermore, we are taking action to ensure that our clients, affiliates, partners or other parties that work with us, are also in full compliance with the new law.
Summary of Requirements for all commercial e-mails:
- Must provide a clear and conspicuous notice of the opportunity to opt-out.
- Must provide a functioning opt-out.
- Internet Based.
- Must work and continue to work 30 days after transmission.
- Opt outs must be removed within 10 days.
- Must provide a valid physical postal address of the sender.
- Must use a valid header.
- No materially false or misleading headers.
- No false pretenses.
- Must have an accurate From Line.
- No False identification of the computer used.
- Must use a valid subject line. It cannot knowingly be misleading or false.
Furthermore, this new legislation prohibits a number of fraudulent practices that Xperience will not tolerate, endorsed or practiced. Xperience’s efforts to comply with this legislation, forbids any relationship with any partner or marketer that transmits email messages that:
- Uses any computer without authorization, or intentionally initiates the transmission of multiple commercial electronic mail messages from or through such a computer.
- Uses scripts or other automated means to register for multiple electronic mail accounts or online user accounts from which to transmit or enable another person to transmit any email or knowingly uses any relay or retransmission of an email from a computer or computer network that has been accessed without authorization.
- Uses a computer to relay or retransmit multiple commercial electronic mail messages, with the intent to deceive or mislead recipients, or any Internet access service, as to the origin of such messages.
- Is accomplished through the intentional transmission from any electronic mail addresses or online user accounts, the registration of which were obtained using information that materially falsifies the identity of the actual registrant.
- Is accomplished through the intentional transmission from any Internet Protocol address, the access to which was obtained through a media affiliate's false representation of itself to be the registrant or the legitimate successor in interest to the registrant of such Internet Protocol addresses.
- Uses any falsified or forged electronic mail transmission information or other routing information in any manner.
Xperience guidelines to ensure that all campaign/broadcasts are in full compliance with the CAN-SPAM legislation and to help us operate as efficiently as possible.
- As a Xperience marketer, broker, or partner, you are 100% responsible for any offer that you market or re-broker to 3rd party mailers.
- You must comply with all federal laws, including the Federal CAN-SPAM Law and Federal and States that relate to state trespass, contract, or tort laws as well as laws related to fraud or computer crime.
- All advertisements must use a valid a non-deceptive subject line.
- All messages must contain a valid physical postal address from the marketer.
- All marketers need to provide us with their list of opt-out no less than 2 days before the campaign is scheduled to broadcast.
- As a Xperience client, partner, agency, affiliate, you agree to indemnify and hold Xperience and Xperience officers harmless from any and all claims, suits or liabilities arising as a result of any errors, omissions, negligence or violations of the law on your part or any of your affiliates, clients or associates.
Client must provide information needed adhering to these guidelines.
- Text (copy) must be submitted in a word document or other editable format (unsecured text on pdf, psd, illustrator or notepad.
- Text must be sent in an organized way (outline format provided by Xperience.) Text for each section that requires text. Please specify which text goes on each section. (Please include the name of the section and the text below.)
- Text must be submitted in a single email, CD or other USB memory drive. If text is submitted in more than 3 separate emails or other forms of communication, applicable fees will apply to review additional communications.
- If text is not submitted in a editable format, we will have to retype and edit text manually and fees will be applied based on an standard hourly rate.
- Images must have good resolution but not exceed 5MB. Images that exceed this size will require additional time to manage and fees will be applied base on quantity.
- If you are submitting several photos, videos & other files, please submit all on a single zip file. You can send them via email, via FTP or provide a CD or USB drive.
Client understands that Xperience will design a website based on the outline provided on the website agreement and to the best of Xperience’s ability in understanding the client’s desires.
- If Xperience fails to follow the website outline provided by Client, Xperience will redesign the website as many times as needed.
- If the client is not satisfied with the structure design of the initial demo, Xperience will request specific direction from the client and will redesign the general look & layout of the website. After the structure redesign takes place, any additional changes to the general structure and layout will be subject to additional fees.
- Xperience will also make up to 10 changes in the creative design including photos, colors and layout (not to exceed, whichever is less, 20 hours of work or the number of hours that will reflect the cost of 20% of the total amount in the invoice. This percentage will be based on Xperience’s standard creative design, html and programming fees. Any additional changes or additions to the website outside the scope of work contained herein will have to be paid by the client. Xperience shall notify the client about the costs of the additional changes or additions prior to making any of these changes or additions.
- Changes in text must be submitted in a word document and must include all the text that must be replaced for the specific section of the website. Do not send comments or directions about changing, adding or removing “individual words or other characters” located in different lines or paragraphs throughout the copy.
- On Tuesdays and Thursdays our team will review changes submitted by the clients.
Clients should expect to see changes within 72 hours from the “review date by design team”. If the changes required more than 72 hours, they will be done in a professional & timely manner.
- The client should send all the changes on a single email. (Review all the work and send the changes all at once, not separate emails for each change.)
If the changes requested are sent on separate emails, there will be delays and fees will apply as stated on the new “design terms and conditions.”
Review of work completed:
- After Xperience completes the structure design and layout, the client must review the work and provide the list of required changes in a single email or file that will be given to Xperience. If the client sends individual changes in more than 3 separate emails, Xperience will invoice the client for additional management fees base on an standard hourly rate to review all the different notifications sent by client.
- Client is responsible to review the website work using a computer or mobile device with standard and current updated browsers, and updated software, (including but not limited to flash, html, java, media players, applicable plugins.
- Mobile websites must be reviewed on mobile devices. If client request other formats for review, applicable fees will be applied.
Final review of work completed:
- Once all the requested changes have been completed, Xperience will send a notification to the client and the client will have 10 days to do a final review of the work and to request any changes that Xperience will make if applicable under the scope of work and terms on this agreement.
- If the client fails to provide a response within the 10 days, Xperience will consider the work has been completed, approved by the client and will close the project. Client will be responsible for payment of any pending invoices. Any additional changes after the 10 day period will be subject to additional fees. Xperience shall notify the client about the costs of the additional changes or additions prior to making any of these changes or additions.
Hosting and Domain name and other related services.
- If you are using Xperience “Web Solution Pack” services, we will take care of the hosting, domain registration, email accounts, set up for FTP, name servers, and other related services to have your website working properly once it is completed.
- In the case your website is hosted somewhere else you will have to provide full access information to the server and you will be responsible to the set up and functioning of the domain name and server. In the event you want Xperience to provide technical support for related services, applicable fees will apply at the standard hourly rate.
- Xperience will not keep any back up of materials provided by the client other than the files and information which is part of the website. In the event Xperience is not providing hosting services, Xperience will not keep any client files or information.
- If the website is not hosted by Xperience and it is accessible by the client and other third parties, Xperience will not be responsible for any missing files or malfunctioning of the website.