Terms of Service

These TERMS OF SERVICE (the "Service Terms") are part of is a contract between VGM Forbin (referred to as we, us, VGM Forbin or Forbin) and the party (referred to as you or Customer) set forth in the related agreement (an “Agreement”) to which these Service Terms are incorporated by reference. These Service Terms also apply to any subsequent agreements entered into between you and us, and further apply to the purchase of all services ordered by Customer pursuant to any other order or other means recorded by VGM Forbin in writing or electronically (collectively, the "Services").

PLEASE READ THESE TERMS OF SERVICE CAREFULLY.

SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN CUSTOMER AND VGM FORBIN, CONSISTING OF THE AGREEMENT, TERMS AND CONDITIONS ASSOCIATED WITH THE AGREEMENT, ANY AGREEMENT AMENDMENT, THE APPLICABLE SERVICE DESCRIPTION AND THESE SERVICE TERMS (all of the foregoing together constitute the “Contract”). YOU ARE AGREEING TO BE BOUND BY THESE SERVICE TERMS AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THE CONTRACT, INCLUDING VGM FORBIN'S USAGE POLICIES. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THESE SERVICE TERMS. YOUR AGREEMENT HERETO ALSO CONSTITUTES YOUR AGREEMENT TO THE USER AGREEMENT AND OTHER "TERMS OF USE" LOCATED AT: forbin.com/terms-of-use.

1. TERM AND TERMINATION

1. Duration. These Service Terms shall be effective as of the date (the “Effective Date”) set forth in the Agreement and shall remain in force until the agreed upon terms of the Agreement have been met or the stated duration of the Agreement has expired.
2. Termination. The Contract may be terminated by either party upon written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within 30 days after receipt of the notice. VGM Forbin may terminate the Contract (i) immediately if Customer fails to pay any fees hereunder; or (ii) if Customer fails to cooperate with VGM Forbin or hinders VGM Forbin's ability to perform the Services.

2. RESPONSIBILITIES OF THE PARTIES

1. Scope of Work. Customer has retained the Services of VGM Forbin to complete the web solution for Customer in accordance with the Agreement. VGM Forbin reserves the right to assign subcontractors as needed to this project to ensure on time completion. In the event of a conflict between the Agreement and these Service Terms, the terms of the Agreement shall govern.
2. Changes. Changes to an Agreement or to any of the specifications of the web work shall become effective only when a written change request is executed by both parties (an "Amendment "). VGM Forbin agrees to notify Customer promptly of any factor, occurrence, or event coming to its attention that may affect VGM Forbin's ability to meet the requirements of the Contract, or that is likely to cause any material delay in delivery or completion of the Services. In the event of a conflict between an Amendment and either these Service Terms or the Agreement, the terms of the Amendment shall govern.
3. Customer's Responsibilities. Customer agrees to perform all tasks assigned to Customer as set forth in the Contract, and to provide all assistance and cooperation to VGM Forbin in order to complete web services timely and efficiently. VGM Forbin shall not be deemed in breach of the Contract, the Services, or any milestone in the event VGM Forbin's failure to meet its responsibilities and time schedules is caused by Customer's failure to meet (or delay in) its responsibilities and time schedules. In the event of any such failure or delay by Customer (i) all of VGM Forbin's time frames, milestones, and/or deadlines shall be extended as necessary; and (ii) Customer shall continue to make timely payments to VGM Forbin as set forth in the Contract and any Amendment as if all time frames, schedules, or deadlines had been completed by VGM Forbin. Customer shall be responsible for making, at its own expense, any changes or additions to Customer's current systems, software, and hardware that may be required to support operation of the Web solution. Unless otherwise contracted with VGM Forbin or reflected in an Amendment, Customer shall be responsible for initially populating and then maintaining any databases on the Web solution as well as providing all content for the Web solution. With the execution of an Amendment specifically asking VGM Forbin to assess the Customer's systems, software and hardware from time to time, VGM Forbin may agree to perform this function at normal VGM Forbin rates.

3. WEB SOLUTION DESIGN

1. Design. The design of the Web solution shall be in substantial conformity with the material provided to VGM Forbin by Customer. Web consultation will be provided according to the number of coordination steps outlined for the plan purchased in the Agreement. Customer will provide direction to VGM Forbin by meeting with the production team via face to face, phone or video conference and delivering feedback for Web construction. Web text will be supplied by the VGM Forbin unless the Agreement states Customer will provide appropriate text for either the entirety of the Web solution or designated portions. VGM Forbin reserves the right to edit or change the content if grammatical or spelling errors are successfully identified. Development of web pages will take place on the Customer's established web hosting service with VGM Forbin unless the Agreement states otherwise. All server technical issues are to be handled by VGM Forbin unless otherwise noted among all parties. Minor updates and changes include any minor modifications and modifications to work out backend database issues and functionality. This does not include adding features beyond the scope of the Agreement. VGM Forbin shall not include, as determined in its sole discretion, any of the following in the Web solution or in Customer's directory on VGM Forbin's Web Server: text, graphics, sound, or animations that might be viewed as obscene or displaying any illegal activities; links to other websites that might be viewed as obscene or related in any way to any illegal activities; impressionistic or cartoon-like graphics (unless provided by Customer); or destructive elements or destructive programming of any type.
2. Coordination Steps. Customer understands that submissions for Web solution development are limited to the number of coordination steps as provided in the Agreement. Customer is encouraged to provide as much instruction and direction as possible with each submission.
3. Accessibility of Web Solution During Construction. Upon design completion Customer will have access to view the Web solution and provide edits or changes to Customer within the scope of the contracted Services. Until Customer has approved the final Web solution, none of the Web Pages for Customer's Web solution will be accessible to end users.
4. Completion Date. VGM Forbin and the Customer shall work together to complete the Web solution in a commercially reasonable manner. VGM Forbin reserves the right to change the agreed upon deadline if Customer has failed to communicate or requests additional changes outside of the scope of contracted services.
5. Copyright to Web Solution. Customer acknowledges, understands and agrees that VGM Forbin may use its own and/or may purchase third party licenses for products or services that are necessary for VGM Forbin to design and develop the Web solution. Such products may include, but are not limited to server-side applications, clip art, "backend" applications, music, stock images, web text, videos, or any other copyrighted work ("Outside Content") which VGM Forbin deems necessary to purchase on behalf of Customer to design and develop the Web solution. Customer further acknowledges and understands that any Outside Content used to design and develop the Web solution is owned by VGM Forbin and/or such third parties, cannot be transferred to Customer, is hereby specifically not transferred to Customer, and shall remain the property of VGM Forbin and/or such third parties. Outside Content which is owned and/or purchased by VGM Forbin may be used in the design and/or development of other web solutions separate from Customer.

4. MAINTENANCE

The Contract does not provide Web solution maintenance unless a Performance Plan is purchased. If the Customer or an agent other than VGM Forbin attempts updating Customer's pages, time to repair web pages will be assessed at an hourly rate. Changes requested by the Customer beyond those limits will be billed at the hourly rates set forth in the Agreement. This rate shall also govern additional work authorized beyond the maximums specified in the Agreement for such Services as webpage design, editing, modifying product pages and databases in an online store, and art, photo, graphics, or any other Services.

5. FEES AND PAYMENTS

1. Development Fee. The total price for all of the work described in the Agreement (excluding post-approval modifications not implemented by Customer) shall be set forth in the Agreement (the "Development Fee"). This price covers all work for the Agreement (excluding post-approval modifications not implemented by Customer). Unless otherwise stated in the Agreement, twenty-five percent (25%) of the Development Fee is due and payable upon execution of the Agreement, and VGM Forbin shall have no obligation to perform any work until payment is received and such funds are cleared from the relevant financial institution. VGM Forbin's Services are "ASIS, WHEREIS, WITH ALL FAULTS", and refunds may not be provided for VGM Forbin's Services hereunder. Further payment may be set forth in the Agreement, which will designate the selected monthly, incremental, or onetime billing options.
2. Project Abandonment. If after repeated attempts to begin, continue, or finalize the delivery of Services, Customer fails to participate, or becomes otherwise unresponsive for a period of 90 days to VGM Forbin requests, the project may be considered abandoned by Customer. In such case VGM Forbin may reduce any refund the Customer may otherwise be entitled to hereunder to zero, and Customer will have forfeited all rights to receive any refund for Services purchased online or as described in the original Agreement.
3. Invoices. All invoices shall be paid by Customer in accordance with the payment conditions stated on the invoice. In the absence of specific conditions, Customer must make payment no later than 15 days after the invoice date (hereinafter the “payment period”). If payment is not made in the payment period, Customer shall be in default, and VGM Forbin shall impose a late payment interest fee of 1.5% per month or 18% per year, calculated over the period Customer is in default. VGM Forbin may impose these interest fees without any notification of default. If Customer remains in default of its payment obligations, the account may be put out for collection, and Customer shall be liable for any and all judicial and collection cost incurred by VGM Forbin, including but not limited to reasonable attorney’s fees.
4. Payments. If Customer does not make payment within the payment period, VGM Forbin is entitled to suspend its contracted obligations until full payment has been made, without prejudice to VGM Forbin’s right to damages and without any obligation to compensate the Customer for any loss. If any instrument received in payment is returned to VGM Forbin as unpaid, the Customer will be considered in default, and in addition to the amount due, the Customer will be subject to a fee of $20.00, or such greater amount as is charged to VGM Forbin by its bank. The Customer waives any right of set off against amounts payable to VGM Forbin. Each payment shall be applied first in payment of the invoice outstanding for the longest period, even if the Customer states that the payment pertains to a more recent obligation.
5. Return and Transfer of Goods. VGM Forbin reserves the right to return or transfer any goods, materials, equipment and the like which the Customer may make available to VGM Forbin, only after the Customer has made full payment for all amounts owed.
6. Monthly Charges. For monthly recurring Services or associated performance plans, Customer will be responsible for payment each month of the applicable monthly amount. If the Customer’s Services are canceled or interrupted for nonpayment, the Customer must continue to pay the monthly account balance. Accrual of monthly account charges will end only upon effectiveness of Customer’s written request to terminate Services.
7. Subscriptions & Automatic Renewals. For any performance plan or other recurring service, VGM Forbin reserves the right to start monthly charges upon setup of staging site and automatically renew the same contracted Services unless the Customer has given a written notice of termination at least 15 days prior to the end of the then current term. Any and all monthly or free subscriptions will renew automatically each month until Customer cancels its account. If Customer is in dispute with VGM Forbin or has previously requested a chargeback that was successfully challenged, Customer’s Services will not automatically renew at the end of the contracted existing service term.

6. INDEMNIFICATION

1. Indemnity by VGM Forbin. In performing Services under this Agreement, VGM Forbin agrees not to design, develop, or provide to Customer any items that infringe one or more patents, copyrights, trademarks or other intellectual property rights (including trade secrets), or other rights of any person or entity. If VGM Forbin becomes aware of any such possible infringement in the course of performing any work hereunder, VGM Forbin shall immediately notify Customer in writing. VGM Forbin agrees to indemnify, defend, and hold Customer, its officers, directors, members, employees, representatives, and agents, harmless for any such alleged or actual infringement and for any liability, debt, or other obligation arising out of or as a result of or relating to (a) the Contract, (b) the performance of the Contract, or (c) the Services, other than arising out of Customer's responsibilities and Customer Content (defined below). This indemnification shall include attorney's fees and expenses, unless VGM Forbin defends against the allegations using counsel reasonably acceptable to Customer. VGM Forbin's total liability under the Contract shall not exceed the amount of the Development Fee paid by Customer to VGM Forbin hereunder.
2. Indemnity by Customer. Customer shall indemnify and hold harmless VGM Forbin, its affiliated companies, and the officers, directors, employees, co-branders or other partners, and agents of each of them, from and against any and all claims, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys' fees and all related costs and expenses) incurred by VGM Forbin as a result of any claim, judgment, or adjudication against VGM Forbin related to or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, artwork, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Customer to VGM Forbin (the "Customer Content"), (b) a claim that VGM Forbin's use of the Customer Content infringes the intellectual property rights of a third party, or (c) any tax or tariff payable by Customer. To qualify for such defense and payment, VGM Forbin must: (i) give Customer prompt written notice of a claim; and (ii) allow Customer to control, and fully cooperate with Customer in, the defense and all related negotiations.

7. REPRESENTATIONS AND WARRANTIES

1. VGM Forbin makes the following representations and warranties for the benefit of Customer:
   1. Conformity, Performance, and Compliance. VGM Forbin represents and warrants that (1) all Services shall be provided in a workmanlike manner and with appropriate professional diligence and skill; (2) all Services will function under standard HTML conventions; (3) all Services will conform to the specifications and functions set forth in the Contract; and (4) it will perform all work called for by the Contract in compliance with applicable laws. VGM Forbin will provide a repair solution for any Service that does not meet this warranty within a reasonable time if the defect affects the usability of Customer's Web solution. This warranty shall extend for the term of the Contract. This warranty does not cover links that change over time, pages that become obsolete over time, content that becomes outdated over time, or other changes that do not result from any error on the part of VGM Forbin.
2. Customer makes the following representations and warranties for the benefit of VGM Forbin:
   1. Customer represents to VGM Forbin and unconditionally guarantees that any elements of Customer Content furnished to VGM Forbin for inclusion in the Web solution are owned by Customer, or that Customer has permission from the rightful owner to use each of these elements.

8. COVENANTS

1. Taxes. From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Customer agrees that it is solely responsible for complying with such laws, taxes, and tariffs, arising from Customer's engagement in Internet electronic commerce.
2. Disclaimer of Warranties. VGM Forbin DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN ITS WEB PAGES OR THE WEB SOLUTIONS WILL MEET THE CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OF THE WEB PAGES WILL BE UNINTERRUPTED OR ERRORFREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE WEB PAGES AND WEB SOLUTION IS WITH CUSTOMER. EXCEPT AS OTHERWISE SPECIFIED IN THE CONTRACT, VGM Forbin PROVIDES ITS SERVICES "AS IS" AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY VGM Forbin, AND (B) VGM Forbin DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE, RELATING TO THE CONTRACT, PERFORMANCE OR INABILITY TO PERFORM UNDER THE CONTRACT, THE CONTENT, AND EACH PARTY'S COMPUTING AND DISTRIBUTION SYSTEM. VGM Forbin MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
3. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST REVENUE, DIMINUTION OF VALUE OF PROPERTY, LOSS OF USE, LOSS OF DATA, OR INTERRUPTION OF BUSINESS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THE MAXIMUM REMEDY AVAILABLE TO EITHER PARTY IS ANY AMOUNT PAID BY CUSTOMER TO VGM Forbin HEREUNDER.
4. Confidentiality. The parties agree to hold each other's Proprietary or Confidential Information in strict confidence. "Proprietary or Confidential Information" shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other's Proprietary or Confidential Information available in any form to any third party or to use each other's Proprietary or Confidential Information for any purpose other than as specified in the Agreement. Each party's proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in the Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of the Contract, VGM Forbin and Customer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of two (2) years from the Effective Date.

9. FORCE MAJEURE

Neither party will be liable for, or will be considered to be in breach of or default under the Contract on account of, any delay or failure to perform as required by the Contract as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.

10. RELATIONSHIP OF PARTIES

1. Independent Contractor. VGM Forbin, in rendering performance under the Agreement, shall be deemed an independent contractor, and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. VGM Forbin shall be solely responsible for and shall hold Customer harmless from any and all claims for taxes, fees, or costs, including but not limited to withholding, income tax, FICA, and workers' compensation, except such taxes or tariffs as are referred to in Section 8.A.
2. No Agency. Customer does not undertake by the Contract, the Agreement or otherwise to perform any obligation of VGM Forbin, whether by regulation or contract. In no way is VGM Forbin to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of the Contract notwithstanding.

11. NOTICE AND PAYMENT

1. Any notice required to be given under the Contract shall be in writing and delivered personally to the other designated party at the addresses listed in the Agreement, mailed by certified or registered U.S. mail with return receipt requested, or by overnight delivery service. Either party may change its address to which notice or payment is to be sent by written notice to the other as specified above.

12. GOVERNING LAW; DISPUTES

The Contract shall be governed and construed according to the laws of the State of Iowa, without regard to conflict of law principles. If any dispute, controversy, claim, or question (each a “Dispute”) arises between the parties relating to the Contract or the breach thereof, the parties shall use their best efforts to settle the Dispute. To this end, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. Except where clearly prevented by the area in dispute, both parties agree to continue performing their respective obligations under the Contract while the Dispute is being resolved. As to any Dispute that is not resolved in this fashion, the parties hereby agree and consent (i) to WAIVE ANY RIGHT TO A TRIAL BY JURY in any action to enforce or defend with respect to any claim, counterclaim, cause of action, or any matter arising from or in any way related to the Contract; (ii) to submit to the jurisdiction of the Iowa District Court for Black Hawk County and the U.S. District Court for the Northern District of Iowa over any action or proceeding to enforce or defend; and (iii) to irrevocably waive to the fullest extent possible any defense of inconvenient forum. in addition to any other means authorized for service of process by governing law, each party agrees to accept service of process by U.S. certified mail, return receipt requested.

13. BINDING ON SUCCESSORS

All provisions of the Contract shall be binding upon and shall inure to the benefit of the parties, their heirs, executors, administrators, successors and assigns.

14. ASSIGNABILITY

Customer may not assign the Contract or the rights and obligations thereunder to any third party without the prior express written approval of VGM Forbin.

15. WAIVER

No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same of other provisions of the Contract.

16. SEVERABILITY

If any term, clause or provision of the Contract is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision, and such invalid term, clause or provision shall be deemed to be severed from the Contract.

17. NO INFERENCE AGAINST AUTHOR

No provision of the Contract shall be interpreted or construed against any party because such party drafted such provision.

18. READ AND UNDERSTOOD

Each party acknowledges that it has read and understands the Contract and agrees to be bound by each and all of its terms and conditions.

19. DULY AUTHORIZED REPRESENTATIVE

Each party represents and warrants that all Contract documents have been executed by a representative of the party who has been duly authorized by all necessary and appropriate actions of the party.

THIS FILE WAS LAST MODIFIED ON AUGUST 5, 2020.