DATA AMERICAN
BASIC TERMS AND CONDITIONS

2.        PROJECT PROPOSAL
The terms of the Proposal shall be effective for three (3) business days after presentation to Client.  In the event the Client does not execute this Agreement within the time identified, the Project Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.   
3.        FEES AND CHARGES
3.1        Fees.  In consideration of the Services to be performed by Designer, Client shall pay to Designer fees in the amounts and according to the payment schedule set forth in the Project Proposal, and all applicable sales, use, or value added taxes, even if calculated or assessed subsequent to the payment schedule.
3.2        Expenses.  Client Shall pay Designer’s expenses incurred in connection with this Agreement as follows: (a) incidental and out-of-pocket expenses including but not limited to the costs of overnight courier, service bureaus, blueprints, or other costs inferred by the Client and outside the scope of Designer.  Computer expenses, parking fees, tolls, and taxi cost plus Designer standard markup of  __ten_ percent (10_%), and, if applicable, a mileage reimbursement at _$1.00_per mile; and (b) travel expenses including transportation, meals, and lodging, incurred by Designer’s Clients’ prior approval.
3.3        Additional costs.  The Project Proposal pricing includes Designer’s fee only.  Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography, and/or art work licenses, prototype production costs, talent fees, music licenses, online access, hosting fees, maintenance fee, domain renewal fee, any and all applicable taxes will be billed to Client unless specifically otherwise provided for in the Proposal or amended in the Addendum section.
a. Domain registration and renewal fee.  Registration fee is paid only once for registering the domain.  However, the renewal fee is paid every year, and is beyond Designer’s control.  The fee is different based on the various types of websites and is mentioned on the Designer website.  Should the Client already own a domain name, and then there will only be a transfer cost--$8.99.  A detail related cost for each Client would be mentioned in the Project Proposal document to be signed by both parties.
b. Hosting fee.  Hosting fee is paid on a yearly basis and is defined by the prices for each specific year. 
c. Website design fee.  The price negotiated and mentioned in the Project Proposal for which a payment plan/schedule has been arranged.
d. Maintenance fee.  The price of maintenance is based on the nature of the project and differs on a Client-by-Client basis.  Therefore, the related maintenance fee is mentioned specifically for each Client in their Project Proposal and is 20% of total cost of purchased services for each year.
e.   Monthly Updates.  The number of monthly updates is based on each Client’s project and circumstances; therefore, it is clearly and in detail mentioned in the Project Proposal document along with if any charges that may be necessary.
3.4        Invoices.   The Billing Plan is included in the Project Proposal with details of due dates and time frames.  Receipts will be sent to Clients via electronic and regular mail.  All invoices are payable within five (5) business days of issuance.  A 15% percent monthly service charge is payable on all overdue balances.  Payments will be credited first to late payment charges and next to the unpaid balance.  Client shall be responsible for collection or legal fees necessitated by late or default in payment.  Designer reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full.  All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses and Fees, Charges or the costs of Changes.
a. Payment terms.  Shall be specified on a Client-by-Client basis in the Client’s Project Proposal and Agreement/Contract.
a. Late payment penalties.  Designer reserves the right to suspend any and all Services to Clients should there be a late payment.  At Designer’s discretion, to continue with the project, the invoices shall carry and specify the late payment penalty based on a 15% of the unpaid late payment amount. 
b.  Full payment.  Project Proposal document includes the full payment amount from Client for services provided.  Any delay in payment will cause late payment penalties as well as late completion of final project on a day-for-day basis.
4.        CHANGES
4.1        General Changes.  Unless otherwise provided in the Project Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and material basis, as Designer’s standard hourly rate of  $100 per hour.  Such charges may also have specific service costs, which will be mentioned in the invoice.  Such charges shall be in addition to all other amounts payable under the Project Proposal, despite any maximum budget, contract price, or final price identified therein.  Designer may extend or modify any delivery schedule or deadline in the Project Proposal and Deliverables as may be required by such Changes.
4.2        Substantive Changes.  If Client requests or instructs Changes that amount to a revision in or near excess of Twenty Percent (20%) of the time required to produce the Deliverables, and or the value or scope of the Services, Designer shall be entitled to submit a new and separate Project Proposal or a Change of Order Form to Client for written approval.  Work shall not begin on the revised services until a fully signed revised Project Proposal or Change of Order Form and, if required, Designer receives any additional retainer fees.
4.3        Changes to Terms and Conditions.  Changes may be made to the Terms of Conditions Agreement.  An updated version will be posted to the Designer website at http://www.dataamerican/terms.   The Client agrees to take note of these revisions to Terms and Conditions in a timely manner and fully agrees to them as long as the Client is still using the Services of Designer.  The revised Terms and Conditions will go into effect immediately.  An E-mail will be sent to Client to notify Client of such changes.
4.4        Timing.  Designer will prioritize performance of the Services as may be necessary or as identified in the Project Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal.  Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Designer.  Designer shall be entitled to request written clarification of any concern, objection or correction.  Client acknowledges and agrees that Designer’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Project Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables.  Should the Client cause a lengthy delay it will result in a day-for-day extension of project’s final completion date.  Any such delay caused by Client shall not constitute a breach of any term, condition or Designer’s obligation under this Agreement. 
4.5        Testing and Acceptance.  Designer will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client.  Client, within three (3) business days of receipt of each Deliverable, shall notify Designer, in writing, of any failure of such Deliverables to comply with the specifications set forth in the Project Proposal, or of any other objections, corrections, changes or amendments to Client wishes made to such Deliverables.  Any such written notice shall be sufficient to identify with clarity any objection, correction, change or amendment, and Designer will undertake to make the same in a commercially timely manner.  Any and all objections, correction, changes or amendments shall be subject to the terms and conditions of this Agreement.  In the absence of such notice from Client, the Deliverable shall be deemed accepted.
4.6        Cure.  Should the Client notify in writing with the modifications necessary for the unacceptability of the delivered work within three (3) business days of deliverance, the Client should give opportunity to effectively cure the necessary modifications; in addition, the Client will receive written notice of the cure and the measurements that will be and/or have been taken. This means to repair, correct, or re-design any work that does not conform to the project specifications mentioned in the Project Proposal in order to make it acceptable to the Client.  The number of workdays that this process delays the final project is added to the final deadline date, which is mentioned in the Project Proposal.  The delay is to be fully accepted mutually by both parties of Client and Designer as a normal part of completion of the project and not as a delay to the terms of the Project Proposal and not as a breach of Agreement by either of the parties.  There is no cost to the Client for Cure modifications; however, should the Client need additional features, upgrading, redesign of template, or other features outside of the signed terms of the Project Proposal, which includes maintenance and updates to the content of the site, a Change of Order Form will have to be filed and charges will be mentioned there in.
5.        CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:

1. Provision of information to representative in order to design the Project Proposal;
2. Provision of all of the content which is to be input in to the website; 
3. Payment of yearly website maintenance fee, hosting fee, Service fee, and domain renewal fee, as will be mentioned in the Project Proposal;
4. Payment of all invoices in a timely manner, as described in the proposal;
5. The final decision making and approvals; should the Client delay any fees, decision making process, approvals, signatures or any necessary document that delays the work process, the Client acknowledges that this delay, delays the final project day, on a day-for-day basis;
6. Coordination of any decision-making with parties other than Designer;
7. Provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Project Proposal; and
8. Final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors, unless otherwise mentioned in the Project Proposal.

6.        ACCREDITATION/PROMOTIONS
All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in Designer’s name in the form, size, and location as incorporated by Designer in the Deliverables, or as otherwise directed by Designer.  Designer retains the right to reproduce, publish, and display the Deliverables in Designer’s portfolios and websites, and in galleries, design periodicals, and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.  Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project Proposal and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.   Moreover, Designer reserves the right to withhold the right of transferability of any websites designed and made by Designer to any other website design or hosting company.  In addition, Designer reserves the rights to withhold outsource of source code to other companies; the codes including but not limited to programming, applications, and design codes.  The Client has full right to the content, including textual and graphical works that were provided by the Client, and the right of usage of the design, program, and applications designed by Designer while using the hosting service of the Designer. Client, may not sell, share, rent, or ask to reproduce work with any third party or in anyway temper with works, designs, programs, or codes produced by Designer; such actions will be deemed breach of agreement and will incur further costs or legal actions.  All digital files and preliminary art works remains the right of the Designer and will remain with the Designer throughout the project and afterwards.

7.        RELATIONSHIP OF THE PARTIES
Each party acknowledges that in connection with this Agreement of Designer it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”).  Each party, its agents, and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Project Proposal except as may be required by a court or governmental authority.  Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without any obligation of confidentiality. 

Moreover, Any information provided by the Client to Designer or Designer to Client is considered confidential and will not be disclosed, sold, rented, or in anyway shared with any third party, even with written/verbal request of Client.  Designer reserves the right to withhold communication or discussion of information regarding Client and is not responsible to communicate with, by way of example but not limited to: previous hosting companies, design companies, partner(s), associates, or any third party affiliating or requested by the Client.  The Client may not request Designer to communicate with another company or any affiliate of Client on behalf of the Client.   Designer is only responsible and in communication with the party whose signature appears on the Project Proposal as well as the Contract Agreement.  Should the Client wish to request to terminate usage of service(s) provided by Designer, the Client will have to notify Designer in a written cancelation statement mailed to Data American, P.O. Box 35563, Los Angeles, CA 90035; verbal or electronic requests are not honored. 
7.1        Independent Contractor.  Designer is an independent contractor, not an employee of Client or any company affiliated with Client.  Designer shall provide the Services under the general direction of Client, but Designer shall determine, in Designer’s sole discretion, the manner and the means by which the Services are accomplished.  This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement.  Designer and the work product of Deliverables prepared by Designer shall not be deemed a work for hire as that term is defined under Copyright Law.  All rights if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.  The Final Art constitutes the website, the design, the code, and all other aspects of the work as it appears on the website; the Client is guaranteed usage rights to the Final Art as far as using it while using the Designer hosting service.  As otherwise described in part 6 and 7, the Client has full rights and ownership and responsibilities to those Content provided by the Client.  The Design and the source codes are complete and full rights of the Designer. 
7.2        Designer Agents, Consultant, Representatives, and Assistants.   Designer shall be permitted to engage and/or use, as a way by example, not limited to, design agents, representatives, and assistants in connection with the Services (“Design Agents”).  Notwithstanding, Designer shall remain fully responsible for such Agents’ compliance with the various terms and conditions of this Agreement. 
7.3        No Solicitation.  During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage, or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire, or any other kind of basis, any Designer employee, representative, assistant, agent, Design agent, whether or not said person has been assigned to perform tasks under this Agreement.  In the event such employment, consultation or work-for-hire event occurs, Client agrees that Designer shall be entitled to an agency commission to be greater of either (a) twenty-five (25%) percent of said person’s starting salary with Client, or (b) twenty-five (25%) percent of fees paid to said person if engaged by Client as an independent contractor.  In the event of (a) above, payment of the commission will be due within thirty (30) days of the employment starting date.  In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client.  Designer, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity. 
7.4        No Exclusivity.  The relationship between Designer and its Client is not an exclusive one.  Designer is a service provider and sells services to a range of Clients and some of them may be competitors.  Should a Client wish to be the only Client in a particular category, pricing will have to reflect that, because an exclusive relationship would require Designer to turn down projects from similar firms, companies, and/or any other businesses.  Higher rates are necessary in order to offset that lost business.  Should the Client be interested in owning exclusive rights to source codes and/or designs please contact the management in a written letter for your request and mail to Data American, P. O. Box 35563, Los Angeles, CA 90035. 
8.        WARRANTIES AND REPRESENTATIONS
8.1        By Client.  Client represents, warrants and covenants to Designer that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any trademarks in connection with the Project does not and will not violate the rights of any third parties, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
8.2        By Designer.  (a) Designer, hereby represents, warrants, and covenants to Client that Designer will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.  (b) Designer further represents, warrants, and covenants to Client that (i) except for Third Party materials and Client Content, the Final Deliverables shall be the original work of Designer and (ii) to the best of Designer’s knowledge, the Final Art provided by Designer and Designer’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties.   In the event Client or third parties modify or otherwise use the Deliverables outside the scope or for any purpose not identified in the Project Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Designer shall be void.  (c) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, DESIGNER MAKES NO WARANTIES WHATSOEVER.  DESIGNER EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANYKIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MECHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJET.
9.        INDEMNIFICATION/LIABILITY
9.1        By Client.  Client agrees to indemnify, save and hold harmless Designer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement.  Under such circumstances Designer shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and (b) Designer provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section.  Client will reimburse the reasonable out-of-pocket expenses incurred by Designer in providing such assistance. 
10.2      By Designer.  Subject to the terms, conditions, express representations and warranties provided in this Agreement, Designer agrees to indemnify, save, and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Designer’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses, or expenses arise directly as a result of gross negligence or misconduct of Client provided that (a) Client promptly notifies Designer in writing of the claim; (b) Designer shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide Designer with the assistance, information, and authority necessary to perform Designer’s obligations under this section.  Notwithstanding the foregoing, Designer shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Designer.
9.3     Limitations of Liability.  THE SERVICES AND THE WORK PRODUCT OF DESIGNER ARE SOLD “AS IS.”  IN ALL CIRCUMSTANCES AND UNDER ANY CONDITIONS, THE MAXIMUM LIABILITY OF DESIGNER, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“DESIGNER PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL BE LIMITED TO THE TOTAL COST OF THE PROJECT MENTIONED IN THE PROJECT PROPOSAL.  IN NO EVENT SHALL DESIGNER BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFIT, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY DESIGNER, EVEN IF DESIGNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10.TERM AND TERMINATION
10.1      This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
10.2      Termination/Cancellation.  Client may cancel this agreement upon written notification mailed to Data American, P. O. Box 35563, Los Angeles, CA 90035; however, any charges incurred to the date of receipt of notification shall be immediately due and payable. Charges shall be for any work in progress, contracted services fees, or software purchases for the purpose to suit the Client’s needs.   If the Client halts work after this agreement is signed (a) work completed shall be billed by the current hourly rate of Designer $100 per hour (b) If at the time of the cancellation work has been completed the Client shall be liable to pay the entire contract cost (c) if the amount has been paid by Client in full for a specific Project, then there will be no refund under any and all circumstances.  Client’s failure to adhere and follow any terms and conditions or any such related document by Designer will be grounds for immediate cancellation and no refund of any kind will be given to the Client.  We Reserve the right to cancel services at anytime with a written notice via E-mail or mail. Should the Client choose to cancel this document giving notice with a written document to Designer, final billing will cover time and materials for actual services performed through the date of receipt of notice of cancelation, as well as all Expenses, Fees, and out of pockets together with any Additional Costs incurred through and up to the date of Cancellation.  In such circumstances where a project is canceled, either by Designer or Client, both completed and uncompleted, the ownership and full rights of the work remains with Designer, except that of Client Content and Third Party Material provided by the Client.  Any other Agreement besides the mentioned here at 10.2 Termination/Cancellation shall be acceptable only if it is added to the Addendum Section of this Agreement.
10.3      Deactivation/Suspension of Services.  Designer reserves the right to suspend network access to any customer if in the judgment of the Designer network administrators the Client’s server is the source or target of the violation of any of the other terms of this agreement or for any other reason which Designer chooses, as by way of example and no limitation, should the Client stop paying the monthly maintenance/yearly maintenance/ or any other fees. If inappropriate activity is detected, all accounts of the Client in question will be deactivated/suspended until an investigation is complete. Prior notification to the Customer is not assured. Client should refrain from participating in and/or performing illegal activities as defined by Federal Laws of the United States of America, State of California, and the International laws.  In extreme cases, law enforcement will be contacted regarding the activity.   In addition, upon notification of Designer of spam/bulk mail being sent from Client server/mail the Client services may be deactivated or temporarily stopped until thorough investigation is done.  Moreover, should this action by Client cause any damages to Designer, the amount will be determined by Designer and either an E-mail and/or a regular mail notification will be provided to the Client.  The amount is to be paid within five (5) business days by Client to Designer.  The customer will not be credited for the time the customer's accounts/machines/applications/services were suspended and Designer stays harmless of any damages that suspension may have caused the Client. 
10.4      Upon expiration or termination of this Agreement:  (a) each party shall return or, at the disclosing party’s request, destroy the Confidentiality Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
11.  GENERAL
11.1      Modification/Waiver.  The parties upon negotiation may modify this Agreement.  Any modification of this Agreement must be in writing only, except that Designer’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity.  Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting waiver or as a waiver of any other breach. Modifications shall be added to the end of this document under section “Addendum to the Agreement.”
11.2      Notices. All notices to be given hereunder shall be transmitted in writing either by fax, regular mail, or electronic mail.  In return confirmation of receipt or by certified or registered mail, return receipt is requested, and shall be sent to the addresses identified below—if regular mail:  Data American, P.O. Box 35563, Los Angeles, CA 90035.  In instances of extreme time sensitivity, either party through Electronic mailing system may give confirmation.  Notices shall be effective upon receipt or in the case of E-mail, upon confirmation of receipt. 
11.3      No Assignment.  Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned, or encumbered by operation of law or otherwise, without the prior written consent of the other party.
11.4      Force Majeure.  Designer shall not be deemed in breach of this Agreement if Designer is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Designer or any local, state, federal, national, or international law, governmental order or regulation, or severe weathers resulting in disconnection of internet lines or any other event not limited to the mentioned above beyond Designer’s control (collectively, “Force Majeure”).  Upon occurrence of any Force Majeure Event, Designer shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
11.5      Governing Law and Dispute Resolution.     The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of California without regard to its inflict of law provisions or the conflict of law provisions of any other jurisdiction.  In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties.  If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties.  Each party shall be held responsible to recover its own attorneys’ fees and costs.  In all other circumstances, the parties specifically consent to the local, state, and federal courts located in the state of California.  The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail.  Client acknowledges that Designer will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Designer shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
11.6      Severability.  Whenever possible, each provisions of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
11.7      Headings.  The numbering, fonts, and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
11.8      Integration.  This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understanding and discussions between the parties relating to the subject matter of this Agreement.  In the event of a conflict between the Proposal and any other Agreement documents, the terms of this document Terms and Conditions shall control.  This Agreement comprises this Basic Terms and Conditions document, the Proposal, Schedule A, and the addendum indicated by the parties’ initials.
11.9      Lawful Purposes: We detain the rights to refuse service to any person. 

12.  E-commerce
“E-commerce” is a type of website in which clients can build a small web store or a virtual shopping mall. E-commerce provides a ready storefront, supports many payment and shipping options, full inventory control, promotional tools, and other related e-commerce software effective features ready to be used. ALL RULES, REGULATIONS, TERMS AND CONDITIONS THAT APPLY TO A NON-E-COMMERCE WEBSITE, DISCUSSED HEREIN, SHALL APPLY TO E-COMMERCE BESIDES THOSE POINTS INCLUDED IN THIS SECTION. Additional items including but not limited to applications, gateways, softwares, SSL licenses that are additional to the E-commerce software must be purchased separately and will accrue extra charges.

13.  Reselling items
Data American may provide outsource licenses that are products of partner companies.  For those licenses that are sold as reselling items, Data American is not responsible and shall not be held liable for any damages, service provision, and other matters related to those reselling items.  Clients may contact the partner company from whom the license are from to make any requests or in order to resolve any matters or issues. 

14. Confidentiality Clause
Each party acknowledges that in connection with this Agreement of Data American it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”).  Each party, its agents, and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Project Proposal except as may be required by a court or governmental authority.  Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without any obligation of confidentiality. 
Moreover, Any information provided by the client to Data American is considered confidential and will not be disclosed, sold, rented, or in anyway shared with any third party, even with written/verbal request of Client. 

Clients may sign their agreement into effect in two ways:

Online by agreeing to the Terms and Conditions on Data American website by clicking the checkbox, including but not limited to when upon opening a new account and/or when purchasing items; clients agree to the full Terms and conditions, including but not limited to Schedule A: Intellectual Property Provisions, even when agreeing online.

A written, signed, and dated Terms and Conditions by both the Client and the Developer may be hand delivered to the Developer.

SCHEDULE A: 
INTELLECTUAL PROPERTY PROVISIONS
IP 1.               RIGHTS TO DELIVERABLES OTHER THAN FINAL ART
IP 1.1    Preliminary art versus final art.  There is an important distinction between preliminary and final art.  Early in web design project, Designer may produce a lot of sketches, rough layouts, visualizations or ideas.  These are prepared solely for the purpose of demonstrating an idea or a message to our Client for acceptance and as a process to continue with the design of the template.  The Client does not receive legal title to or permanent possession of these items.  Preliminary concepts may be modified or rejected entirely.  Only one concept will be taken through to completion and it is the only approved and finished final art that will be delivered to the Client.  Designer retains all rights in and to all Preliminary works.  Client shall return all Preliminary Works to Designer within 10 days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Designer.  The Designer also retains the rights of designs.  The Client’s payment for website design only refers to the usage of the design while using the hosting service of Data American.  The Client may not request any third party company to reproduce the design of the template of the website that was already designed by Data American.
The Final Art constitutes the website, the design, the code, and all other aspects of the work as it appears on the website; the Client is guaranteed usage rights to the Final Art as far as using it while using the Designer hosting service.  As otherwise described in part 6 and 7, the Client has full rights and ownership and responsibilities to those Content provided by the Client.  The Design and the source codes belong to Designer. 
IP 1.2    Third-Party Materials.  If intellectual property owned by a third party is to be used in a project, the Client is wholly responsible for respecting any usage limitations placed on the property.  The Client can negotiate usage rights with the third party and make payments directly to them.
IP 1.3    Designer Design Tools and Technology.  All designing and designer tools are and shall remain the exclusive property of Designer, including by not limited to application codes, source code, and design.  Designer hereby grants to Client a nonexclusive, nontransferable, perpetual, worldwide license to use the Designer Design Tools and Technology tools solely to the extent necessary with the Final Deliverables for the Project while using the hosting service of the Designer.  Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works, otherwise disassemble or modify, or reproduce any Designer tools comprising any software or technology of Designer.  Moreover,this deals with the issue of background technology of websites.  If any code that is proprietary to Designer is necessary to develop, run, display, or use the final deliverables, then Designer retains ownership of it and grants a non-exclusive license for the Client to use it.  Therefore, Designer can use that same technology on any other Clients’ projects.  This is unless the Client wishes to purchase the source code for single or multiple domain usages, for which the Client may contact Designer at Data American, P. O. Box 35563, Los Angeles, CA 90035.
IP 1.4    Client Content.  Client content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith.  Client hereby grants to Designer a nonexclusive, nontransferable license to use, reproduce, modify, display, and publish the Client Content solely in connection with Designer’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
IP 1.5    Original Artwork.  Designer retains all right and title in and to any original artwork comprising the Final Art, including all rights to display or sell such artwork.  Client shall return all original artwork to Designer within 10 days of completion of the Services.
IP 1.6    Trademarks.  Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Designer assigns to Client all rights of usage of Services mentioned in the Project Proposal, while using the hosting service of the Designer.  Designer shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment.  Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party.  Client hereby indemnifies, saves, and holds harmless Designer from any and all damages, liabilities, costs, losses, or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.
IP 2.   RIGHTS TO FINAL ART
IP 2.1    License.  A license is a limited grant by Designer to its Client of rights to use the intellectual property (website) comprising the final art in a specified way.  Client’s right of Final Art shall be limited to the usage rights granted here for the Project only.  The Client may request a hard copy of the License for the limited right of usage while using the hosting service of the Designer.
IP 2.2    Liquidated damages.  These are the amount of damages that would be payable by the Client upon a breach of contract. Client’s use of Final Art shall be limited to the usage rights granted in the License document for the Project only.  Use of the Final art, Deliverables or any derivative works thereof by Client at any other time or location, or for another project or outside the scope of the rights granted in the License document require an additional fee and Designer shall be entitled to further compensation.   Since Designer cannot know in advance the extent of the actual damages that would be caused by the unlicensed usage, the amount of money to be paid is calculated as a multiple of the original contract price and it is set to be 300 percent.   In the event of non-payment, Designer shall be entitled to pursue all remedies under law and equity.
IP 2.3    Assignment of rights.  An assignment is a full transfer of intellectual property rights to Clients by Designer.  Designer, however, charges a higher fee to be negotiated on a Client-by-Client basis for any project that involves a full assignment of rights. Unless noted in Client’s Project Proposal and in the Addendum Section of this Agreement, Designer withholds giving Assignment of all rights to any of its Clients.