Terms and Conditions
Welcome to One Oak Flow! By accessing our services, you agree to abide by these Terms and Conditions, which govern your partnership with us. These terms provide important information about the services you have agreed to use, outline the payment terms, and explain your rights and responsibilities as well as ours.
Please read these Terms and Conditions carefully before using our services as they affect your obligations and legal rights, including but not limited to waivers of rights and limitations on liability. By continuing to use our services, you agree to be bound by these terms.
- If a Client desires to alter any portion of the Services to be provided by One Oak Flow at any time during the Term, Client shall submit any such requests to One Oak Flow (a “Change Request”). One Oak Flow shall coordinate in good faith to identify the scope of any such changed Services to be provided and the adjustments, if any, to be made to the amounts payable to One Oak Flow, and One Oak Flow shall have the right to accept or reject any such Change Request in One Oak Flow’s sole and absolute discretion and no Change Request will be effective unless and until executed by both One Oak Flow and Client.
- Payment: For and in consideration of the Services, Client agrees to pay One Oak Flow the following amounts and at the following timelines (all such payments, the “One Oak Flow Fee”):
- Development Fee: The applicable Development Fee selected above shall be paid: (i) fifty percent (50%) on the Effective Date, (ii) twenty-five percent (25%) upon Client approval of the final design of the website (the “Website”), and (iii) twenty-five percent (25%) upon final delivery and launch of the Website. All payments are non-refundable.
- Monthly Fee: The applicable Monthly Fee selected above, together with the applicable monthly fee for Add-On Services, if any, shall be paid on or before the 1st day of each month in which such Services are to be provided.
- Late Fees; Interest; Cessation of Services. In the event Client fails to make any payment by the timelines required herein, One Oak Flow shall have the option to charge Client a late payment fee in an amount equal to five percent (5%) of such outstanding amount, and shall further have the right to charge interest on any unpaid balance at the rate of one and one-half percent (1.5%) per month, or the maximum interest allowable by law, whichever is less. In the event Client fails to pay outstanding amounts within thirty (30) days, One Oak Flow shall have the option to terminate and/or pause the Services, including taking down the Website, in whole or in part at One Oak Flow’s discretion.
- Timeline; Term. One Oak Flow will undertake good faith efforts to complete the Website within four (4) weeks of the Effective Date, subject to reasonable extensions for unforeseen circumstances and any delay(s) caused by or arising out of Client’s final approval of Website design and/or any applicable Change Order(s). Upon completion and launch of the Website, One Oak Flow will provide the monthly Services on a month-to-month basis until this Agreement is terminated according to the terms hereof. Either party may terminate this Agreement by providing at least thirty (30) days’ prior written notice to the other party, or immediately if (i) the other party becomes insolvent, files a petition for bankruptcy, or makes an assignment for the benefit of creditors, or (ii) the other party breaches any of its representations, warranties, responsibilities, or other obligations arising under this Agreement and any such breach remains uncured ten (10) days after written notice thereof. Upon termination of this Agreement, Client shall pay One Oak Flow all amounts owed as of the effective date of such termination.
- Intellectual Property Rights:
- Work Product; Pre-Existing IP; Third Party Materials. Upon completion of the Website and payment in full of the Development Fee, One Oak Flow shall be deemed to have automatically transferred and assigned all of One Oak Flow’s right, title, and interest in and to the Website, including the code, design, and assets contained therein (the “Work Product”) to Client; provided, that to the extent individual components of the Work Product incorporate or are based upon proprietary tools, software, processes, source code, or other proprietary information of One Oak Flow (the “Pre-existing IP”), or to the extent the Website incorporates any open source components or licenses, third party materials or stock footage, or other aspects licensed to One Oak Flow but not owned by One Oak Flow (“Third Party Materials”), the parties agree that such Work Product does not include the Pre-existing IP or the Third Party Materials and that One Oak Flow shall retain ownership of such Pre-existing IP, including the right to create derivatives of such Pre-existing IP. To the extent such Pre-existing IP and/or Third Party Materials are incorporated into the Work Product, upon payment of the Development Fee, One Oak Flow shall be deemed to have automatically (i) granted to Client a perpetual, irrevocable, fully-paid, royalty-free, non-exclusive license to use such Pre-existing IP solely for Client’s intended use of the Website, and (ii) transferred and assigned to Client that portion of One Oak Flow’s right to use the Third Party Materials as contained within the Work Product.
- Attribution; Portfolio. Notwithstanding anything to the contrary contained in Section 4.1, One Oak Flow reserves the perpetual right to display, and to require Client to display, an acknowledgment and credit on the Website to One Oak Flow for the Services provided herein, which may include a link to One Oak Flow’s own website and portfolio, and Client agrees to display such acknowledgment on the Website and adhere to any reasonable requests by One Oak Flow related to the content, display, and characteristics of such acknowledgment. One Oak Flow shall also have the perpetual right and license to reference the Website on One Oak Flow’s portfolio or other marketing and advertising materials at One Oak Flow’s sole discretion.
- User Data. Client agrees to provide One Oak Flow with access to data derived from the use of the Website (“User Data”) for the purposes of analyzing and evaluating user behavior, optimizing performance, collecting user feedback, evaluating business outcomes and marketing strategies, improving SEO ranking, and related purposes. Client shall be responsible for collecting any such User Data in accordance with applicable law and shall maintain appropriate terms and conditions on the Website at all times in order to obtain requisite consents from users of the Website for the use and access of the User Data as provided herein.
- Confidentiality: From time to time during the term of this Agreement, either party may disclose or make available to the other party information about its or its affiliates’ business affairs, products, intellectual property, trade secrets, business strategies, customer lists and customer information, technical specifications, third-party confidential information, and other sensitive or proprietary information, whether or not marked as “confidential” or otherwise and in any medium or format (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure as evidenced in writing by the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party who had the right to disclose such information without violating any confidentiality or other restrictive covenants owed to any party or other third person; or (d) independently developed by the receiving party without use of or reference to the Confidential Information provided herein. Subject to One Oak Flow’s rights to use the User Data in accordance with Section 4.2, the receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order. On the expiration or termination of the Agreement, at the request of the disclosing party, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations of non-disclosure with regard to Confidential Information will survive the termination of this Agreement for the maximum duration permitted by applicable law.
- Representations and Warranties:
- One Oak Flow. One Oak Flow represents and warrants that (a) it will perform the Services using sufficient personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, (b) to the best of One Oak Flow’s actual knowledge, the Work Product will not infringe upon the intellectual property rights of any third party, and (c) the Work Product will comport in all material respects with the specifications described above and as may be agreed upon in writing by One Oak Flow and Client.
- Client. Client shall perform the obligations required of it in this Agreement within the timelines proscribed herein, and Client agrees that One Oak Flow shall not be responsible or liable for any late delivery or 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. Client represents and warrants that: (i) Client has the right to use all photographs, information, art, design, copy, and other intellectual property provided by it to One Oak Flow for inclusion on the Website (“Client Content”); (ii) Client owns all right, title, and interest in, and/or has legal authority to use, the Client Content, and such Client Content does not, and use of such Client Content will not, infringe on the intellectual property rights of any third party; (iii) Client will comply with the terms and conditions of any licensing agreements governing the use of any content owned by a third party; (iv) Client has the requisite power, authority, and ability to perform its obligations arising hereunder and pay all amounts owed to One Oak Flow pursuant to this Agreement and is not relying on any third party source of funding for all or any portion of the amounts to be paid to One Oak Flow hereunder. The party signing this Agreement on behalf of Client represents and warrants that such party is duly authorized to sign this Agreement on behalf of Client and that this Agreement constitutes a binding obligation of Client, enforceable in accordance with the terms hereof.
- Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, THE WEBSITE AND ALL SOFTWARE, SERVICES, AND WORK PRODUCT ARE PROVIDED “AS IS” AND ONE OAK FLOW HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ONE OAK FLOW SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, ONE OAK FLOW MAKES NO WARRANTY OF ANY KIND THAT THE WEBSITE OR THE SOFTWARE, THE SERVICES OR WORK PRODUCT, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE.
- Indemnification; Survival. Each party agrees to indemnify, defend, and hold harmless the other party from and against any and all losses, damages, liabilities, and costs incurred arising from or related to the breach of such party’s representations and warranties set forth in this Section. The representations, warranties, and covenants of the parties provided in this Section shall survive the termination of this Agreement.
- Limitations of Liability. IN NO EVENT WILL ONE OAK FLOW BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER ONE OAK FLOW WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL ONE OAK FLOW’S AGGREGATE LIABILITY, INCLUDING ONE OAK FLOW’S INDEMNIFICATION OBLIGATIONS ARISING HEREUNDER, ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO ONE OAK FLOW BY CLIENT.
- Force Majeure. One Oak Flow shall not be liable or responsible to Client, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from any force majeure events or other actions or events beyond One Oak Flow’s reasonable control, including, but not limited to: (a) acts of God; (b) flood, fire, earthquake, pandemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (g) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, or technical failures.
- Independent Contractor; No Partnership. The parties agree that Client is engaging One Oak Flow for the Services solely as an independent contractor and that nothing contained herein creates, or shall be deemed to create, an employer-employee relationship, partnership, joint venture, or otherwise, and neither party is the agent, representative, or otherwise has any authority to bind or commit to bind the other party under any contract, obligation, or other agreement. Each party will be responsible for its own taxes, withholdings, and related reporting obligations arising out of or related to this Agreement.
- Entire Agreement. This Agreement, together with any executed Change Request, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and any executed Change Request(s), the following order of precedence governs: (a) first, the Change Request(s), executed by both One Oak Flow and Client, in the order of preferences of newest to oldest, (b) second, this Agreement.
- Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, (a) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (b) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Assignment. Client may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law, change of control, or otherwise, without the prior written consent of One Oak Flow. No assignment or delegation will relieve Client of any of its obligations hereunder. Any purported assignment or delegation in violation of this Section will be null and void. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.
- Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Washington.
- Mediation; Arbitration. Any controversy, claim, or dispute arising under or relating to this Agreement shall be resolved by a single, neutral arbitrator in an arbitration conducted in Chelan County, Washington, in accordance with the then-current rules of commercial arbitration of the American Arbitration Association. The decision or award rendered by the arbitrator shall be final, non-appealable, and binding upon the parties, and judgment may be entered upon it in accordance with applicable law in a court of competent jurisdiction. Arbitration in accordance with this paragraph is the sole and exclusive method, means, and procedure to resolve any and all claims or disputes other than those seeking exclusively injunctive relief. One Oak Flow and Client hereby irrevocably waive any and all rights to resolve disputes in a manner that is contrary to the provisions of this paragraph. Any and all attempts to circumvent the terms of this paragraph shall be null and void and of no force or effect whatsoever. Client acknowledges that Client has received and read or has had the opportunity to read this arbitration agreement (set forth in this Section), understands that this arbitration agreement requires that disputes that involve the matters subject to the Agreement be submitted to arbitration pursuant to this Section rather than to a judge and jury in court, and by signing below, Client agrees to such dispute resolution provisions.
- Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. Electronic signatures and signatures transmitted electronically by fax, e-mail or otherwise shall be deemed and effective as originals.