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Terms Of Service

Hite Digital® (“Hite Digital®”, “we” or “us”) provides a range of marketing products and services for businesses of all sizes (the “Services”).  These Terms of Service sets forth which Services are being purchased, the Client purchasing the Services (the “Client”, “you” or “your” and together with Hite Digital® the “Parties” or each individually a “Party”), the costs for such Services, the minimum Initial Term and other relevant details.  These Terms of Services (the “Terms of Service”) are incorporated by reference into and made part of any further agreement submitted to Hite Digital® and govern the relationship between you and Hite Digital®. These Terms of Service are effective on the date they are signed (the “Effective Date”) and remain in effect until terminated as provided below. The Terms of Service, any services agreement executed by the Parties and the documents and/or links referenced in such documents are collectively referred to as the “Agreement”.

PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THESE TERMS, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHICH CONTAIN, AMONG OTHER PROVISIONS, DISPUTE RESOLUTION PROVISIONS, A WAIVER OF CLASS-ACTION RIGHTS AND LIMITATIONS OF LIABILITY. UNLESS OTHERWISE EXPRESSLY STATED, Hite Digital® DISCLAIMS ANY AND ALL WARRANTIES WHETHER PROVIDED BY Hite Digital®, ITS AFFILIATES, OR ITS RESPECTIVE EMPLOYEES AND AGENTS. 

These Terms of Service constitute the entire agreement between the Parties. 

1- Marketing Services. Hite Digital® Services include, but are not limited to, the following. Not all of these services are applicable to all accounts, please review with the Hite Digital Dream Team for the list of products and services included in your specific marketing partnership. 

  • Placement Ads
  • Retargeting Ads
  • Social Targeting Ads
  • Natural Listing Ads
  • Local Listing Ads
  • Click-to-calls
  • Website Design
  • Custom Website Design/Development
  • Website Hosting
  • Reputation Management
  • SEO Services
  • CRM Management and Setup
  • Logo Design
  • Social Media Management
  • PR Marketing Campaigns
  • Video and Photography Services
  • Analytics and Data Collection
  • Prospecting Generation
  • Consulting
  • Personal/Professional Branding
  • Additional Consulting and Dreaming Sessions
  • Linked In Campaigning

 

2- Client Services. Hite Digital® will provide the Services outlined in your Hite Digital proposal governed by these Terms of Service. You may add additional one-time or recurring products and services at any time during the life of this Agreement. You may add services by communicating your request via email to your Account Manager / Hite Digital® representative, and once you receive an email confirming the same, such additional product or service shall be included in as a component of the Services. Unless the Parties agree otherwise in writing, any and all products and services added during the Term shall be governed by this Agreement. For the purpose of this Agreement, a Client who is current on their monthly payment or agreed retainer, as outlined in its Service Agreement, is considered a Marketing Client.

3- Compliance with Laws/Prohibited Content. Client shall not use or permit the Services to be used in violation of any applicable national, state or local laws or regulations. Without limiting the foregoing, Client may not use any Hite Digital® Services for any illegal activity including the storage or transmission of information, data, files or links to content that violate any applicable local, state, national or international law. This includes, but is not limited to, pirated software, copyrighted data, or links thereto, the propagation of computer worms or viruses, the use of false identities, or attempts to gain unauthorized entry to any network. Pornography and sex-related merchandising are prohibited on all Hite Digital® servers. This includes sites that may infer or link to sexual content. Spamming sites and sites selling or promoting bulk email software, services or addresses are also prohibited. Hite Digital® may terminate this agreement if it determines, in its sole discretion, Client has violated this policy. 

4- Client Obligations. In addition to making all required payments, Client shall (a) cooperate with Hite Digital® in all matters relating to the Services and provide access to Client’s Google Adwords and Analytics accounts (and all other accounts necessary or desirable for us to perform the Services to the best of our ability) as necessary; (b) respond promptly to questionnaires and any reasonable request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Hite Digital® to perform Services in accordance with the requirements of this Agreement; and (c) provide such customer materials or information as Hite Digital® may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects. Hite Digital is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement

5- Payment. Unless otherwise agreed to by the Parties in writing, once you have executed this Agreement, you will be responsible for payment in full of all associated payments, except as may otherwise be provided in Section 6 below. All payments are due in US dollars. Unless otherwise stated, Client will pay all amounts due under this Agreement monthly, in advance. Payment for one-time services will be due in full on the Effective Date, or as otherwise provided in your proposal. For recurring payments, the initial payment will be taken on the Effective Date, and you will be billed for subsequent payments as outlined in your proposal. For monthly recurring Services, unless your proposal states otherwise, you will be billed on the same numerical day of each month as the Effective Date. For example, if the Effective Date is November 17th, you will be billed for recurring monthly payments on December 17th, January 17th, and so on. The last billing date in each month is the 25th.  If your Effective Date is after the 25th, the first payment will be taken on the Effective Date, and recurring payments will bill on the 25th of each month. For annual recurring services, you will be billed for the first year on the Effective Date, and you will be billed for subsequent payments on the anniversary of the Effective Date unless canceled as provided in Section 5 below. If you are a Marketing Client, you acknowledge that you are required to pay the full amount due for the Services each month through the Initial Term and Renewal Terms at no less than the monthly recurring marketing total listed in your proposal. You will be required to agree to all applicable payment authorization forms which authorize recurring billing in accordance with your agreement. Hite Digital® shall have the right to charge your credit card or debit from your account through ACH for fees in accordance with this Agreement. Client warrants the validity of any ACH information provided to Hite Digital® and acknowledges that Hite Digital® is entitled to debit Clients account for any ACH fees charged to Hite Digital® due to Clients error, including, but not limited to, incorrect information, invalid account numbers and non-sufficient funds. Hite Digital® uses a credit card updating service that automatically updates credit card numbers where a credit card has expired or been replaced. You acknowledge that Hite Digital® has a right to charge any credit card updated in this manner in accordance with this Agreement. YOU UNDERSTAND AND ACKNOWLEDGE THAT ALL AMOUNTS OWED MUST BE PAID IN ADVANCE AND THAT, IN ADDITION TO BEING IN BREACH OF YOUR CONTRACTUAL OBLIGATIONS, YOUR SERVICES MAY BE PAUSED OR TERMINATED IF TIMELY PAYMENT IS NOT RECEIVED OR IF A PAST PAYMENT HAS BEEN DISPUTED WITHIN 15 DAYS.

Term/Termination.
  • Term. The Agreement shall begin on the Effective Date and will remain in effect for(12) months or until earlier terminated as provided below (the “Initial Term”). Only months in which full payment has been received will count as a month of marketing under the Initial Term. Client acknowledges that Client’s marketing plan is designed based on a minimum 12-month Initial Term unless otherwise specified. 
  • Cancellation. Client may cancel the Services by providing no less than 30 days written notice, prior to billing date, of cancellation via email addressed to Clients Marketing Executive or Project Manager, as applicable.  If you have not completed the Initial Term, cancellation will be effective at the completion of the Initial Term.  If you have completed the Initial Term, services will continue through the end of the next applicable Renewal Term and will then be cancelled. 
  • Early Cancellation. If you wish to cancel the Services without completing the Initial Term you may do so only by providing both written notification of cancellation and the Early Cancellation Fee. If your proposal does not define the Early Cancellation Fee it shall be equal to (3) monthly payments under the Initial Term. The Early Cancellation Fee payment is in addition to your monthly payments to date and may not be paid with any prior payment. The Early Cancellation Fee must be provided within five (15) business days from our receipt of your written notice of early cancellation. No early cancellation will take effect until the Early Cancellation Fee has been paid or otherwise agreed upon, and you will continue to be billed monthly until we receive both proper written notice of cancellation and the Early Cancellation Fee, as applicable. Upon execution of this agreement, Hite Digital® will be investing considerable work into Client’s business and online marketing activities. This investment is being made with the understanding that you are committing to pay for the Services through the Initial Term. Client recognizes the aforementioned investment, up-front sales, setup and opportunity costs that Hite Digital® bears in connection with this marketing commitment, and acknowledges that this fee is not a penalty, but rather a reasonable amount of liquidated damages to compensate Hite Digital® for early cancellation of the Services. 
  • Cancellation Revocation. You may, upon written notice (email is acceptable), revoke such cancellation within 30 days after you have made a cancellation request, in which case this Agreement will be reinstated, and all applicable services will be reinstated upon payment in full of all amounts owed. If the cancellation fee has already been paid it shall be applied to any future amounts owed. 
  • Hite Digitals Right to Cancel. We may cancel this Agreement at any time for any reason, and in our sole discretion, by providing written notice of cancellation to you.  Cancellation will take effect at the end of the then current billing period. Written notice may be provided to you via email. If we terminate this Agreement, we will reimburse you for any unused funds within 30 business days from the effective cancellation date. 
  • Pause of Service. You may request a pause in your Services, however it will be in Hite Digital®s sole discretion to determine if a pause in Services is appropriate. No pause will be effective without a signed written confirmation from both Hite Digital® and Client.
  • No Refunds. Upon cancellation of this agreement by you for any reason, any and all unused funds will be forfeited. Unless we cancel the agreement pursuant to Section 5(e)., no refunds will be provided for any amounts already paid to Hite Digital®.
  • Collection of Amounts Owed. You agree to pay all costs of collection (including attorney’s fees, costs and other legal and collection expenses) incurred by Hite Digital® in connection with its enforcement of its right to payment under the Agreement. Any amounts not paid by you when due shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). 
  • Charge Disputes. If you dispute any payment with your credit card company or bank, and such dispute is resolved in Hite Digital®s favor, you will be assessed a charge of $100 per dispute initiated. You acknowledge that this amount is not a penalty, but a reasonable amount of liquidated damages to compensate Hite Digital® for the additional costs incurred in defending your payment dispute.
6. Intellectual Property.
  • License to Hite Digital®.  During the Term, you hereby grant to Hite Digital® a nonexclusive, royalty-free worldwide license to use, copy, backup, modify, display, broadcast and transmit any of your content, including but not limited to your website, text, images, logos, trademarks, service marks, promotional materials, photos, audio, and video content relating to your existing website, as applicable, to the extent necessary and for the sole purpose of allowing Hite Digital® to perform the Services. This license will terminate upon termination of this Agreement; provided this license will continue after termination of this Agreement to the extent Hite Digital® is winding down its provision of the Services and fulfilling its obligations hereunder. 
  • Ownership of Creative Deliverables and Content. Upon receipt by Hite Digital® of full, unconditional payment from Client, Client shall own all rights, title and interest in and to the Creative Deliverables (as defined below) created under this Agreement.  Creative Deliverables shall mean Custom Website Design, logo design, video production, photography services and general design. Hite Digital® will retain a non-exclusive, non-revocable license in the completed Creative Deliverables, and Hite Digital® reserves the right to use the Creative Deliverables for advertising, publication, promotion, display or other purposes, such use to be extended beyond the termination or earlier expiration of this Agreement subject to Client’s approval, which shall not be unreasonably withheld.
  • Ownership of Website Design. Notwithstanding Section 7(b), Hite Digital® retains all copyrights in all non-custom website designs delivered under this Agreement. Upon valid cancellation of this Agreement in accordance with Section 6, and so long as full, unconditional payment has been received by Hite Digital® for any amounts owed by Client under this Agreement, Client will be granted a perpetual, royalty free, revocable, non-transferable license to use, copy and publish any website design and related materials delivered to Client under this Agreement. Hite Digital® reserves the right to revoke this license only in the event that either (1) Client does not fulfill the Initial Term and/or pay the early cancellation fee or (2) Client initiates a payment dispute for any past payment. 
  • Work Product Ownership.  Any copyrightable works, ideas, discoveries, inventions, patents, products or other information (collectively, Work Product) developed in whole or in part by Hite Digital® during the course of this Agreement but excluding the Creative Deliverables and any materials referenced as belonging to Client pursuant to Section 7(a) above, shall be the exclusive property of Hite Digital®.
  • Trademarks. All trademarks in this agreement and used in conjunction with the Services are trademarks of Hite Digital®, its affiliates and licensors. Use of these trademarks without the express written consent of Hite Digital® is prohibited. 
  • Pre-Existing Materials. Notwithstanding anything to the contrary herein, Hite Digital® and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Pre-Existing Materials (defined below), including all Intellectual Property therein. Hite Digital® hereby grants Client a perpetual, limited, royalty-free, non-transferable, non-sublicensable, worldwide license to use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell, and otherwise exploit any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Creative Deliverables solely to the extent reasonably required in connection with Client’s receipt or use of the Services and Creative Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by Hite Digital®. “Pre-Existing Materials” means any documents, data, know-how, methodologies, software, and other material, including computer programs, reports, and specifications, provided by or used by Hite Digital® in connection with performing the Services, in each case developed or acquired by Hite Digital® prior to the commencement or independently of this agreement.
HITE-PROVIDED SUBSCRIPTION SERVICES
  1. Leased Website Terms: For the purposes of this Agreement, the term “Managed Website” refers to a Leased Website provided by Hite Digital® under a subscription-as-a-service model. While the term “Managed Website” may be used in proposals, communications, and throughout the client experience, the following terms govern all Leased Websites as defined herein.
  2. Ownership and Access Rights.
Leased Websites are not owned by the Client. This includes, without limitation, the website infrastructure, template, backend systems, and design layout. Hite Digital® retains all rights, title, and interest in and to the Leased Website at all times. The Client is granted limited access to the Leased Website solely for the duration of an active, fully paid subscription.
  1. Content and Customization.
Clients may provide logos, written content (copy), and photographs for use on the Leased Website. The Client retains ownership of such assets; however, their inclusion in the Leased Website does not transfer any rights to the website itself. The Leased Website may be customized using Client-provided assets and up to two (2) hours of design support per month, which may be used for revisions or adjustments. Unused design support hours do not roll over.
  1. Hosting and Non-Transferability.
Leased Websites are hosted exclusively on Hite Digital®’s HITE CRM platform. The website is non-transferable and cannot be migrated to another host or platform. Hosting is included in the Client’s monthly subscription fee.
  1. Subscription Model and Access Termination.
Leased Websites are available on a month-to-month subscription basis. The website is included as a bundled CRM service and is not itemized separately. If payment is not received by the due date, access to the website will be revoked immediately upon the next billing cycle date. Failure to pay or a request to pause services will be treated as a termination of service.
  1. Backup and Data Release Policy.
Upon termination, Hite Digital® will maintain a backup of the Leased Website for thirty (30) days following the final billing cycle. Upon written request, Hite Digital® will provide the Client with any written copy and blog content they originally submitted or that was created by Hite Digital® as part of the subscription; however, no formatting, layout, or design guarantees are made with respect to this content, and such content may not be compatible with third-party platforms.
  1. Buyout and Migration Restrictions.
There is no option to purchase, export, or migrate a Leased Website. Clients interested in owning their website outright must engage with Hite Digital® through a separate custom website design and development agreement.
  1. Third-Party Fees.
Any third-party software, platforms, or features integrated into the Leased Website — including, but not limited to, texting platforms, VoIP services, or CRM features — may incur additional fees not included in the base subscription. These are billed separately and are subject to the third-party provider’s terms and conditions.
  1. Managed CRM Services Terms These terms apply to clients who have elected to utilize HITE’s Managed CRM Services, which are offered on a subscription-as-a-service model. By subscribing to our Managed CRM Services, you agree to the following: 1. Ownership and Access Clients subscribing to Managed CRM Services do not own the CRM platform, backend infrastructure, or the proprietary system. This is a leased solution. Clients retain ownership of their own visual assets (logos, photos) and written copy they provide or create in collaboration with our team. 2. Content Rights HITE will provide a copy of the written content and blog posts created during the subscription period upon termination of services. However, HITE does not guarantee the formatting or transfer compatibility of these materials. 3. Access Upon Termination Access to the CRM will end at the conclusion of the current billing cycle in the event of termination or non-payment. HITE will retain a backup of the CRM system for a period of thirty (30) days following the final billing date. After that point, the data may be permanently deleted. 4. Non-Migratable Platform The CRM platform is non-transferable and cannot be migrated to another hosting provider or platform. 5. Subscription Model This is a month-to-month subscription with no long-term contract unless otherwise specified in writing. The subscription includes hosting and CRM infrastructure maintenance as part of the monthly fee. Clients may cancel at any time, but are responsible for all fees incurred through the end of the current billing cycle. 6. Client Responsibilities Clients are responsible for providing necessary content and assets for setup and customization, including logos, photos, and any third-party integrations. HITE is not responsible for sourcing or licensing third-party assets on the client’s behalf. 7. Third-Party Fees The Managed CRM Services may involve third-party tools such as texting platforms, phone systems, or VoIP solutions. These tools incur separate charges not included in the subscription fee. Clients are responsible for managing and paying for these third-party tools directly. 8. “Managed” Terminology Usage In all client-facing language, the service may be referred to as a “Managed CRM” to reflect the ease and supported nature of the service. However, for legal purposes, this remains a leased service and is subject to all the terms above. By continuing use of the Managed CRM, clients agree to these terms, which are subject to revision upon notice.
  1. Representations.  By signing you personally represent that (a) you have the power to enter into this Agreement and be bound to its obligations hereunder on behalf of the Client; (b) the execution of this Agreement by the Client has been authorized by all necessary corporate actions; and (c) upon execution of this Agreement, this Agreement constitutes a legal, valid and binding obligation of Client, enforceable against Client in accordance with its terms. Client further represents that Client has the right to use and will continually maintain the right to use throughout the Term of this agreement all intellectual property, including but not limited to copyrighted materials and trademarks, supplied to Hite Digital® for use in conjunction with the Services. 
  2. Agency. In the event that you are purchasing the Services on behalf of another company, you personally represent and warrant that you have been authorized by such company to act as its agent in all respects related to the agreement.  Without limiting the foregoing, you agree on behalf of each such company that such company has been made aware of, and agrees to be bound by, these Terms of Service. 
  3. DISCLAIMER OF WARRANTIES. Hite Digital® PROVIDES ALL SERVICES ON AN AS IS BASIS WITHOUT ANY WARRANTY OF ANY KIND, AND MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE SERVICES. THE SERVICES ARE PROVIDED WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED AVAILABILITY. IF THE MARKETING SERVICES ARE INTERRUPTED OR DELAYED, Hite Digital’S SOLE OBLIGATION WILL BE TO RESTORE OR PROVIDE SUCH SERVICES AS SOON AS PRACTICABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Hite Digital DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, Hite Digital MAKES NO GUARANTEES WITH RESPECT TO THE PERFORMANCE OF ANY PRODUCT OR SERVICE. CLIENT ACKNOWLEDGES THAT Hite Digital OFFERS CREATIVES PRODUCTS AND SERVICES WHICH ARE OFTENTIMES SUBJECTIVE IN NATURE.  DUE TO THE INHERENT DIFFICULTY IN PERFECTLY MATCHING CREATIVE AMBITION AND EXPECTATIONS, Hite Digital SPECIFICALLY DISCLAIMS ANY WARRANTY AS TO COMPLETELY FULFILLING THE CREATIVE DIRECTION AND EXPECTATIONS OF CLIENT AND CLIENT ACKNOWLEDGES THAT A PERCEIVED DISCONNECT IN QUALITY OR CREATIVE DIRECTION SHALL NOT CONSTITUTE A BREACH HEREUNDER. FURTHER, Hite Digital DOES NOT WARRANT OR GUARANTEE ANY RESULTS OR SUCCESS FROM THE SERVICES.  Hite Digital IS ONLY RESPONSIBLE FOR THE PROVISION OF THE SERVICES HEREUNDER AND CANNOT CONTROL OR EFFECT OUTCOMES OF CONSUMERS OR THE MARKET AS A WHOLE. FINALLY, Hite Digital HEREBY DISCLAIMS ANY EXCLUSIVITY OR DUTY OF LOYALTY TOWARDS CLIENT AND CLIENT ACKNOWLEDGES THAT Hite Digital MAY PERFORM SERVICES FOR PARTIES DEEMED COMPETITORS OF CLIENT. 
  4. LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, Hite Digital SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CLIENT OR COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE INDEMNIFICATION SECTION AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS YOU PAID TO Hite Digital FOR THE SERVICES SOLD HEREUNDER. WITHOUT LIMITING THE FOREGOING, Hite Digital IS NOT RESPONSIBLE FOR ANY DAMAGES DUE TO ANY CONTENT, OMISSIONS, OR ERRONEOUS DATA APPEARING IN CLIENTS WEBSITE, BLOGS OR ON SOCIAL MEDIA OR ANY LOSS, DAMAGE, CORRUPTION OR BREACH OF CLIENT DATA WITHIN CLIENTS Hite Digital Account.  WE FURTHER DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE IN CONJUNCTION WITH THESE SERVICES. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICES TO YOU. 
  5. Dispute Resolution. 
  • Good Faith and Cooperation. Each of the Parties agrees to cooperate in good faith, reasonably, and in such a manner as may be necessary or appropriate to implement and give effect to the terms, conditions, and agreements contained herein. Each Party agrees to contact the other in writing (email is acceptable) regarding any claims, disputes or controversies, and allow the other Party no less than 30 days to cure the issue and/or demonstrate that there is in fact no issue present under these Terms of Service prior to initiating any formal legal action, payment dispute, or publishing any disparaging comments detrimental to the reputation, business, or business relationships the other. 
  • Agreement to Arbitrate. If the Parties are unable to resolve a dispute in Good Faith, the Parties hereby agree to resolve any and all disputes, controversies or claims arising out of, relating to or in connection with this Agreement, including the breach, termination or validity thereof, through confidential binding arbitration in the State of Wyoming by a single arbitrator. Such arbitration shall be administered by the American Arbitration Association (AAA) and conducted pursuant to the Expedited Procedures of the Commercial Arbitration Rules (CARs) of the AAA. The Parties further agree that they may only bring or participate in claims against the other in their respective individual capacities, and not as a plaintiff or class member in any purported class or representative proceeding. The Parties further agree that the arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. 
  • Exceptions to Agreement to Arbitrate. Either Party may assert claims, if they qualify, in small claims court in the State of Wyoming. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services or for intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the Good Faith dispute-resolution process described above. In the event that the Arbitration Agreement is found not to apply for any reason, all actions relating to or in connection with this Agreement shall be brought in the state and federal courts of the state of Wyoming. The Parties consent to venue and personal jurisdiction in these courts for the limited exceptions under this Section 12.c. 
  • Costs and Attorney’s Fees: Except as otherwise provided in these Terms of Service, the Parties will be responsible for their own costs and legal fees. Provided, if an action is filed by Hite Digital® for non-payment by Client, Hite Digital® shall be entitled to recover all attorneys fees and court costs incurred in connection with such action. 
  • Voluntary and Knowing Waiver. BY ENTERING INTO THIS ARBITRATION AGREEMENT, CLIENT ACKNOWLEDGES AND AGREES THAT IT IS WAIVING THE RIGHT TO A TRIAL BY JURY FOR ANY CLAIM SUBJECT TO ARBITRATION. CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT IT MAY ONLY BRING A CLAIM IN ITS INDIVIDUAL CAPACITY, AND THAT IT WAIVES ANY RIGHT TO BRING AN ACTION AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. OTHER RIGHTS THAT CLIENT WOULD HAVE IF IT WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. 
  1. Indemnification. You agree to indemnify, defend and hold us harmless from any and all liability, claims, damages and settlements due to any third-party claims or causes of action, (including, without limitation, reasonable attorney’s fees and court costs) arising out of or relating to Client’s (a) illegal or unauthorized use of the Services, or (b) noncompliance or breach of any of these Terms or Service by Client or any third party (authorized, permitted or enabled by Client).  This indemnification includes, but is not limited to, any actions, including intellectual property actions (including trademark and copyright actions), actions related to end user personal or financial data, PCI compliance, Clients order processing, billing, fulfillment, shipment, collection and/or actions related or associated with any products or services offered, sold or licensed through Clients website. If Client is a Covered Entity under The Health Insurance Portability and Accountability Act of 1996 (HIPAA), Client waives any Claims it may have against Hite Digital® arising out of or in connection with HIPAA requirements and agrees to indemnify and hold harmless Hite Digital against any and all Claims that are related to or arise from failure to comply with HIPAA requirements. 
  2. Miscellaneous. 
  • Choice of Law:  This agreement and its interpretation, and all controversies arising hereunder, shall be governed by the applicable statutory and common law of the State of Wyoming without giving effect to conflict of laws principles. 
  • Entire Agreement. These Terms or Service together with the applicable proposal constitute the entire agreement between the Parties. All prior agreements, discussions, representations, warranties and covenants are merged herein. Any amendments or modifications of this agreement shall be in writing and executed by the Parties. 
  • Waiver. The failure by either Party to require performance of any provision shall not constitute a waiver nor affect that Party’s right to require performance at any time thereafter. 
  • Electronic Signatures. Each party agrees that electronic signatures have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record. 
  • Severability. If any provision of this Agreement or the application thereof is held invalid, illegal or unenforceable by any court of competent jurisdiction, (a) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement will remain in full force and effect. 
  • Assignment. Neither Party may assign any part of the Agreement without the prior written consent of the other Party, provided, however, that either Party may freely assign this Agreement in connection with a sale of substantially all of its assets or a change of control of at least 50% of the voting equity interests of the business effective upon notice to the other Party. 
  • No Third-Party Beneficiaries. The parties do not confer any rights or remedies upon any Person other than the parties to this Agreement and their respective successors and permitted assigns. 
  • Third-Party Sites and Products. Third-Party sites and products are not under our control and are provided to you only as a convenience. The availability of any Third-Party Site or Product does not mean we endorse, support or warranty the Third-Party Site or Product. 
  • HIPAA. If Client is a covered entity or a business associate thereof, as each term is used under the Health Insurance Portability and Accountability Act of 1996 (as may be amended or replaced, HIPAA) or is otherwise subject to any HIPAA-related or similar legal requirement, Client is solely responsible to ensure full compliance therewith. Client is responsible for maintaining the privacy of any persons or their information that may be covered by HIPAA or any related or similar legislation or regulation. Hite Digital® makes no claims or warranties regarding compliance with HIPAA. 
  • Google Third Party Disclaimer. Hite Digital® resells Google AdWords as a Google Third Party Partner. For more information on this program please see Google’s Working with a Third Party Disclaimer located at http://www.google.com/adwords/thirdpartypartners/.
  • Relationship of the Parties. The Parties to the agreement are independent contractors, and no agency, partnership, joint venture or employee/employer relationship is intended or created. 
  • Referrals. Hite Digital® may provide incentives to third parties to introduce potential Clients to Hite Digital®.
  • Survival. The sections labeled Intellectual Property, Confidentiality, Disclaimer of Warranties, Limitations of Liability, Dispute Resolution, and Indemnification are intended to survive the termination, cancellation or expiration of this agreement. Notwithstanding the foregoing, Client remains liable for any amounts due to Hite Digital® as of the effective date of termination. 
  • Subcontracting. Hite Digital® may subcontract to any party the performance of all or any of Hite Digital®s obligations under this Agreement, provided that Hite Digital® remains primarily liable for the performance of those obligations. 
  • Taxes. The fees do not include any taxes, levies, duties or other similar government assessments of any nature, including but not limited to value-added, sales, use or withholding taxes assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, Taxes). Client is responsible for paying any taxes associated with the purchase of the services hereunder. Sales Tax will be collected on all products in accordance with the local and state regulations of the Client’s home state.
  • Call Recording. You acknowledge that we may record Client phone calls for quality control purposes. 
  • Trade Name. Hite Digital® is a federally registered trademark.
  • Headings. Section headings are provided for reference purposes only and in no way define, limit, construe or describe the scope or extent of any section. 
  • Force Majeure. Neither party shall have any liability for any failure or delay (other than for an obligation to pay) resulting from any government action, natural disaster, power failure, or any other condition affecting production or delivery in any manner beyond the reasonable control of such party. 
  • Notices. All notices required by one party hereunder shall be provided in writing to the other Party at the mailing address or email address provided to the other Party from time to time in writing. 
  • Defined Terms. Capitalized terms are defined in the Section in which they first appear. 
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