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Privacy Policy

LAST UPDATED: MAY 21, 2021

Tellwell, LLC (“us”, “we”, or “our”) operates the staging.tellwellnew.flywheelsites.com website (the “Service”).

This page informs users (“you” or “your”) of our policies regarding the collection, use and disclosure of Personal Information when you use our Service.

We will not use or share your information with anyone except as described in this Privacy Policy.

We use your Personal Information for providing and improving the Service. By using the Service, you agree to the collection and use of information in accordance with this policy. Unless otherwise defined in this Privacy Policy, terms used in this Privacy Policy have the same meanings as in our Terms and Conditions, accessible at staging.tellwellnew.flywheelsites.com

INFORMATION COLLECTION AND USE

While using our Service, we may ask you to provide us with certain personally identifiable information that can be used to contact or identify you. Personally identifiable information may include, but is not limited to, your email address, name, phone number, postal address, other information (“Personal Information”).

We collect this information for the purpose of providing the Service, identifying and communicating with you, responding to your requests/inquiries, servicing your purchase orders, and improving our services.

LOG DATA

We collect information that your browser sends whenever you visit our Service (“Log Data”). This Log Data may include information such as your computer’s Internet Protocol (“IP”) address, browser type, browser version, the pages of our Service that you visit, the time and date of your visit, the time spent on those pages and other statistics.

In addition, we may use third party services such as Google Analytics that collect, monitor and analyze this type of information in order to increase our Service’s functionality. These third party service providers have their own privacy policies addressing how they use such information.

COOKIES

Cookies are files with a small amount of data, which may include an anonymous unique identifier. Cookies are sent to your browser from a web site and transferred to your device. We use cookies to collect information in order to improve our services for you.

You can instruct your browser to refuse all cookies or to indicate when a cookie is being sent. The Help feature on most browsers provide information on how to accept cookies, disable cookies or to notify you when receiving a new cookie.

If you do not accept cookies, you may not be able to use some features of our Service and we recommend that you leave them turned on.

DO NOT TRACK DISCLOSURE

We do not support Do Not Track (“DNT”). Do Not Track is a preference you can set in your web browser to inform websites that you do not want to be tracked.

You can enable or disable Do Not Track by visiting the Preferences or Settings page of your web browser.

SERVICE PROVIDERS

We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services and/or to assist us in analyzing how our Service is used.

These third parties have access to your Personal Information only to perform specific tasks on our behalf and are obligated not to disclose or use your information for any other purpose.

COMMUNICATIONS

We may use your Personal Information to contact you with newsletters, marketing or promotional materials and other information that may be of interest to you. You may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email we send or by contacting us.

BUSINESS TRANSACTION

If Tellwell, LLC is involved in a merger, acquisition or asset sale, your Personal Information may be transferred as a business asset. In such cases, we will provide notice before your Personal Information is transferred and/or becomes subject to a different Privacy Policy.

SECURITY

The security of your Personal Information is important to us, and we strive to implement and maintain reasonable, commercially acceptable security procedures and practices appropriate to the nature of the information we store, in order to protect it from unauthorized access, destruction, use, modification, or disclosure.

However, please be aware that no method of transmission over the internet, or method of electronic storage is 100% secure and we are unable to guarantee the absolute security of the Personal Information we have collected from you.

LINKS TO OTHER SITES

Our Service may contain links to other sites that are not operated by us. If you click on a third party link, you will be directed to that third party’s site. We strongly advise you to review the Privacy Policy of every site you visit.

We have no control over, and assume no responsibility for the content, privacy policies or practices of any third party sites or services.

CHILDREN’S PRIVACY

Only persons age 18 or older have permission to access our Service. Our Service does not address anyone under the age of 13 (“Children”).

We do not knowingly collect personally identifiable information from children under 13. If you are a parent or guardian and you learn that your Children have provided us with Personal Information, please contact us. If we become aware that we have collected Personal Information from a children under age 13 without verification of parental consent, we take steps to remove that information from our servers.

YOUR ACCEPTANCE OF THIS POLICY

Your use of this website and Service we offer will constitute acknowledgment of and agreement to this policy and Terms of Service. If you do not agree to this policy, do not use the Service.

CHANGES TO THIS PRIVACY POLICY

This Privacy Policy is effective as of the date posted and will remain in effect except with respect to any changes in its provisions in the future, which will be in effect immediately after being posted on this page.

We reserve the right to update or change our Privacy Policy at any time and you should check this Privacy Policy periodically. Your continued use of the Service after we post any modifications to the Privacy Policy on this page will constitute your acknowledgment of the modifications and your consent to abide and be bound by the modified Privacy Policy.

CONTACT US

If you have any questions about this Privacy Policy, please contact us.

 

Terms and Conditions (“Terms”)

LAST UPDATED: MAY 21, 2021

Please read these Terms and Conditions (“Terms”, “Terms and Conditions”) carefully before using the staging.tellwellnew.flywheelsites.com website (the “Service”) operated by Tellwell, LLC (“us”, “we”, or “our”).

User(“you” or “your”) access to and use of the Service is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who wish to access or use the Service.

By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the Terms then you do not have permission to access the Service.

LINKS TO OTHER WEB SITES

Our Service may contain links to third party web sites or services that are not owned or controlled by Tellwell, LLC.

Tellwell, LLC has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party web sites or services. We do not warrant the offerings of any of these entities/individuals or their websites.

You acknowledge and agree that Tellwell, LLC shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party web sites or services.

We strongly advise you to read the terms and conditions and privacy policies of any third party web sites or services that you visit.

ACCESSIBILITY

We have endeavored to create our website in a manner that is accessible to persons with communication disorders; however, since there are currently no formal Federal or State regulations defining specifically what a compliant website is or looks like, other than that it should be independently usable by persons with communication disabilities, we assume no responsibility for any claim, either in a court of law or by way of a demand letter or similar means, regarding the accessibility of our website.

DISCLAIMER OF WARRANTIES

THE SERVICE IS PROVIDED “AS IS” AND “WITH ALL FAULTS.”  TELLWELL, LLC MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.  

 

LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAE TELLWELL, LLC SHALL HAVE NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  YOU HEREBY ASSUMES ALL RISK FOR THE USE OF THE SERVICE AND THE RESULTS THEREOF AND HEREBY UNCONDITIONALLY AND IRREVOCABLY RELEASES AND DISCHARGES TELLWELL, LLC FROM ANY AND ALL LOSS, CLAIM, DAMAGE, OR OTHER LIABILITY RESULTING FROM SUCH USE. WITHOUT LIMITING THE FOREGOING, THE MAXIMUM AGGREGATE LIABILITY OF TELLWELL, LLC FOR ALL DAMAGES LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, CHALL BE THER GREATER OF (I) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO TELLWELL, LLC TO USE THE SERVICE AND (II) FIFTY U.S. DOLLARS ($50).

INDEMNITY

To the extent permitted by applicable law, you agrees to defend, indemnify, and hold harmless Tellwell, LLC and its subsidiaries, affiliates, officers, directors, agents, partners, and employees against and from any and all third party claims, lawsuits, and demands, and all associated liabilities, fines, penalties, judgments, damages, costs, and expenses (including without limitation attorneys’ fees and costs of defense)  in connection with any claim arising from or related to (a) your use of the Service, (b) your violation of these Terms.  Tellwell, LLC may, at its election, assume the defense and control of any matter for which it is indemnified hereunder.  You shall not settle any matter involving Tellwell, LLC without our consent.

GOVERNING LAW AND VENUE

These Terms shall be governed and construed in accordance with the laws of North Dakota, United States, without regard to its conflict of law provisions. Tellwell, LLC and you consent to the exclusive jurisdiction and venue of the courts of the State of North Dakota in Cass County, North Dakota, and to the jurisdiction and venue of the United States District Court for the District of North Dakota for any action brought to enforce, construe or interpret this Agreement.

Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have had between us regarding the Service.

 

CHANGES

We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material, it will be effective thirty (30) days following either notice to you or our posting of the amended Terms. What constitutes a material change will be determined at our sole discretion.

By continuing to access or use our Service after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the Service.

CONTACT US

If you have any questions about these Terms, please contact us.

This Statement of Work provides an outline of what we’re agreeing to.

Client and Tellwell, LLC (“Tellwell”) (collectively, the “Parties”) acknowledge and agree to the fees for the project (the “Project Fees”), the scope of the work (the “Scope”), the agreed upon delivery schedule (“Delivery Schedule”), and the following Terms  ( collectively the “Statement of Work”): :

You provide one person to approve the stuff we send and are available regularly. 

Client will provide a single point of contact for all feedback and sign-off. Client will be responsible for checking in with the project team on a regularly scheduled basis.

Client “project contact” will be available for questions, via email and/or telephone, throughout the engagement as needed. 

All feedback and sign-off from Client will be delivered via email to Tellwell within one (1), business day of deliverable. After one (1) business day, Tellwell will notify client contact of the deadline, and at Tellwell’s sole discretion may extend a grace period of twenty-four (24 ) hours or such period of time as Tellwell otherwise deems appropriate. Delays in either feedback or sign-off past any such grace period can incur a change order.

Tellwell will be cc’d on all communications with the Client’s team regarding any project Client has with Tellwell (with the exception of internal communications between members of the Client’s team)

Let us know if something is broken (in a reasonable amount of time). 

All deliverables shall be considered “as-is,” with no revisions or modifications of any kind. If any deliverables are discovered to be faulty (for example, corrupted files) or incomplete (for example, missing images), Tellwell shall correct such problems within seventy-two (72) hours of notification by Client. Such notification must be provided by Client to Tellwell no later than 72 hours from receipt of all deliverables, notice provided later may be addressed at Tellwell’s discretion.

Client will deliver any assets required (i.e. logos, access to marketing collateral) to complete any project with Tellwell.

You’re in charge of paying for additional rights to usage (like premium fonts and audio).

Tellwell will not provide rights clearance for any third-party content or creative assets, including but not limited to fonts, illustrations, photographs, audio, and video used in the project. All rights clearance will be provided by Client.

We retain ownership of created content and will provide you a license to use the completed work. 

Content created by Tellwell during the Scope of the project includes Completed Work (the finished product deliverable to Client) and Work Product (material including video, audio, photos, etc. that didn’t make the final cut). Unless otherwise agreed to, Tellwell retains ownership over all Content created during the scope of the project.  License terms are service specific and may take the form of an exclusive or non-exclusive license.  

Tell us everything as much as you can so we can be as good as we can! 

Client will provide Tellwell with access to all business and strategy, creative, technical, and other project documentation as deemed necessary by Tellwell. Tellwell shall not be held accountable or liable for any impact of any information not disseminated by Client due to Client designating the information “not applicable” to the engagement. 

If you change the scope, we’ll make sure you know the price.

Change Management Policy: Throughout the course of this type of engagement, additional issues may arise that cannot be reasonably predicted or assumed during the initial estimating process. For this reason, Tellwell may adjust the Scope and Project Fees as necessary to effectively address the needs of Client. In the event that changes are necessary, Tellwell will use a formal change control process. Upon identification of a needed scope change, Client and/or Tellwell will be required to document the requirements of the scope change utilizing a “Change Control Form”. Tellwell will then estimate the resource, time, and cost implications of the scope change and submit the Change Control Form to Client  for approval. Upon approval, the necessary steps will be taken to ensure that the change is properly implemented. 

Please pay. We’re a small business too!

Payment is due at each milestone due date as noted in the Delivery Schedule. All invoices for billable expenses are payable within fifteen (15) days of receipt. A five percent (5%) service charge will be added each thirty (30) days the invoice is not fully paid. 

A down payment of one (1) month worth of this engagement is due upon signing (if applicable).

Client will provide a credit card for all ad buy related expenses.

A fifteen percent (15%) service charge will be added to any expenses paid for by Tellwell on behalf of Client. 

Except as expressly provided, in no event shall Tellwell’s aggregate liability arising out of or related to this Statement of Work, whether in contract, tort, or otherwise, exceed any license and/or service fees paid during the three (3) month period immediately preceding the event giving rise to the liability. In no event shall Tellwell have any liability to the Client for any lost profits, loss of use, costs of procurement of substitute goods or services, or for any indirect, special, incidental, punitive, or consequential damages however caused, whether arising in contract, tort, or otherwise, even if Client has been advised of the possibility of such damages in advance and even if a remedy set forth herein is found to have failed of its essential purpose. Client hereby assumes all risk for the use of the Services and/or Content (as defined in any applicable Terms and Conditions of Agreement ) and the results thereof and hereby unconditionally and irrevocably releases and discharges Tellwell from any and all loss, claim, damage, or other liability resulting from such use.

You agree to additional service specific provisions.

The varied nature of Tellwell’s services make it difficult for us to describe them in general terms.  To ensure that the Parties adequately understand all their rights and responsibilities we have drafted specific provisions for some services.  Client agrees to be bound by the additional Standard Terms & Conditions and Web Hosting Terms & Conditions, as applicable.  The Standard Terms & Conditions and Web Hosting Terms & Conditions may be reviewed by following the links below, or by visiting (list url).  

Standard Terms & Conditions

Web Hosting Terms & Conditions

STANDARD TERMS AND CONDITIONS 

  • SCOPE
      1. General.  This Terms and Conditions of Agreement (this “Agreement”) covers the Service described in the Statement of Work (“SOW”) executed in connection with this Agreement, and all Tellwell Content (as hereinafter defined) created pursuant to Tellwell rendering its services to Client as set forth in the applicable SOW (the “Services”).
      2. Purpose.  Tellwell hereby grants to Client a License (as hereinafter defined) to use the Designated Content (as hereinafter defined) provided by Tellwell, pursuant to the terms and conditions set forth herein.  Each License granted to Client by way of this Agreement is expressly conditioned on Client’s compliance with all terms of this Agreement and the SOW, including any and all exhibits, schedules or attachments to such documents.
      3. Purchase.  For each purchase of a License or any Services, the parties shall execute a SOW.  
      4. Fees; Payment Terms.  Client shall pay all fees for the License and/or Services as set forth in the applicable SOW.  Client shall be responsible for the payment of sales or other taxes levied on Tellwell’s licensing of the Designated Content or provision of Services to Client.  If Client is not current on its undisputed payments under this Agreement, Tellwell may in its sole discretion suspend or terminate any License or Services provided under this Agreement until all outstanding amounts have been paid.  Tellwell reserves the right to require any disputed fees to be paid into escrow, pending resolution of any such dispute.
  • Conflicts.  To the extent any provision in this Agreement irreconcilably conflicts with any provision of any applicable SOW executed herewith, the provisions of the SOW shall control.
  • LICENSE
      1. License.  Tellwell grants Client a limited, non-exclusive, non-transferable, non-sublicensable, revocable license (each, a “License”) during the Term (as hereinafter defined) to use the Services and to access, copy, display, distribute, and broadcast the Designated Content to Client’s Users, solely in connection with the Services and solely for Client’s business purposes.  The term “Users” means Client employees and Client customers in the normal course of business.
      2. Content.  “Content” includes all original content created by Tellwell including Completed Work (as defined in the applicable SOW) deliverables provided to Client in connection with the Services and any intermediate Work Product (as defined in the applicable SOW).  For purposes of this Agreement “Designated Content” is limited to the Completed Work as defined in the SOW.  Nothing in this Agreement should be interpreted as giving the Client a License to any Work Product.
      3. Reservations; Restrictions.  The License granted to Client under this Agreement is limited to the rights expressly granted herein and as may be further described in the applicable SOW.  Tellwell expressly reserves all other rights.  Client shall not (a) modify, deconstruct, translate, or create any derivative work of all or any portion of the Services or any Content (b) display, disclose, make available, or provide access to the Services or any Content to any third party other than Client’s Users (including by means of sharing or disclosing passwords or other log-in credentials); (c) circumvent or attempt to circumvent any password or other access-limiting measures implemented by Tellwell; or (d) remove, obscure, or modify any Tellwell proprietary notices or markings.  Client acknowledges that Tellwell may, without liability of any kind, limit or suspend Client’s access to or use of the Services or any Content if it is determined that such access or use violates any of the terms of this Agreement or any applicable SOW.
  • PROPRIETARY RIGHTS
      1. Ownership.  Tellwell owns and shall retain all rights, title, and interest in and to the Services and any and all Content, (including all Completed Work and Work Product), all modifications and improvements thereto (including any made by or with Client’s participation), all Feedback (as defined below) and, unless otherwise agreed in writing, all intellectual property rights in the foregoing (collectively the “Tellwell Property”).  Client hereby irrevocably and unconditionally assigns any and all rights it may have in the Tellwell Property to Tellwell.  Client covenants not to challenge Tellwell’s exclusive ownership of the Tellwell Property or directly or indirectly assert any rights thereto inconsistent with Tellwell’s exclusive ownership thereof.  “Feedback” means any comments, suggestions, bug reports, or other feedback that Client may provide to Tellwell from time to time regarding bug fixes, enhancements, or other modifications to the Content, Tellwell Property, or any Services.
      2.  Client Content.  Client retains all rights, title, and interest in and to any content (including third party content) it supplies to Tellwell (“Client Content”), subject to any rights of third parties.  Client represents and warrants that it has all necessary rights and authorizations to use Client Content in connection with the Services and to incorporate it into any Content created in rendering said Services.  To the extent permitted by law, Client grants Tellwell the right and permission for Tellwell to use Client’s, and Client’s employees, appearance and likeness as contained in any photographs or video taken by Tellwell for the purpose of advertising, editorial purposes, or any other legal purpose, in any manner and at any time.
  • NO WARRANTY; EXCLUSIVE REMEDY

THE CONTENT AND ALL OTHER TELLWELL PROPERTY AND ANY SERVICES PROVIDED BY TELLWELL ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.”  TELLWELL MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.  Except as expressly provided in an applicable  SOW, Client’s sole and exclusive remedy for Tellwell’s failure to provide Content or Services as provided herein shall be, at Tellwell’s option, repair or replacement of the Content, re-performance of the Services, or refund of the applicable fees paid by Client.  

  • INDEMNIFICATION
      1. General Indemnification. To the extent permitted by applicable law, Client agrees to defend, indemnify, and hold harmless Tellwell and its subsidiaries, affiliates, officers, directors, agents, partners, and employees against and from any and all third party claims, lawsuits, and demands, and all associated liabilities, fines, penalties, judgments, damages, costs, and expenses (including without limitation attorneys’ fees and costs of defense)  in connection with any claim arising from or related to (a) Client Content, (b) Client use of the Services, (c) your violation of the terms of this Agreement, and (d) Client violation of any third party rights.  This defense and indemnification obligation will survive this Agreement and Client use of the Services.  Tellwell may, at its election, assume the defense and control of any matter for which it is indemnified hereunder.  Client shall not settle any matter involving Tellwell without Tellwell’s consent.
      2. Intellectual Property Indemnification. Client agrees to indemnify, defend, and hold Tellwell harmless from any third party claim that the disclosure to Tellwell or use by Tellwell of Client Content in accordance with this Agreement infringes such third party’s valid U.S. patent, copyright, or other intellectual property rights or violates any other right of such party.  Further, Client agrees to pay that portion of any final judgment (or any settlement approved by Client) awarded against Tellwell directly attributed to such claim.
  • LIMITATION OF LIABILITY

EXCEPT AS EXPRESSLY PROVIDED, IN NO EVENT SHALL TELLWELL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE LICENSE AND/OR SERVICE FEES PAID DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.  IN NO EVENT SHALL TELLWELL HAVE ANY LIABILITY TO CLIENT FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  CLIENT HEREBY ASSUMES ALL RISK FOR THE USE OF THE SERVICES AND/OR CONTENT AND THE RESULTS THEREOF AND HEREBY UNCONDITIONALLY AND IRREVOCABLY RELEASES AND DISCHARGES TELLWELL FROM ANY AND ALL LOSS, CLAIM, DAMAGE, OR OTHER LIABILITY RESULTING FROM SUCH USE.

  • TERM AND TERMINATION
      1. Term.  The initial term of this Agreement will be for one (1) year beginning on the date on which Tellwell commences its Services unless otherwise specified in the SOW (the “Initial Term”).  Unless earlier terminated as set forth herein, the term of this Agreement and any SOW issued herewith will automatically renew for additional one (1) year terms (each, a “Renewal Period”) after the Initial Term of the Agreement (the Initial Term and any Renewal Periods, collectively, the “Term”), unless either party notifies the other in writing at least ninety (90) days prior to the end of the then-current Term of its intent not to renew the Agreement and applicable SOW.  Notwithstanding any other provision hereof, this Agreement shall remain binding on both parties so long as any SOW issued herewith remains in effect.
      2. Termination by Client. Client may terminate this Agreement, or any SOW issued herewith (a) for any reason and at any time after the Initial Term of the Agreement (or applicable SOW) upon (90) days’ written notice to Tellwell; or, (b) for cause upon written notice if Tellwell materially breaches its obligations under this Agreement or applicable SOW.
      3. Termination by Tellwell. Tellwell may terminate this Agreement, or any SOW issued herewith (a) for any reason and at any time after the Initial Term of the Agreement (or applicable SOW) upon (90) days’ written notice to client; or, immediately for cause (b) if Client breaches any provision of this Agreement or applicable SOW; or, (c) if Client fails to comply with License terms or otherwise assigns, licenses, sublicenses, or attempts to assign, license, or sublicense any of its rights or obligations under this Agreement without the prior written consent of Tellwell.
      4. Effect of Termination.  Upon expiration or termination of this Agreement for any reason, any License granted as part of this Agreement shall be immediately and automatically revoked, Client shall (a) cease all use of the Tellwell Services and/or Content; and (b) pay all unpaid amounts due to Tellwell. To the extent permitted by law, continued use of the Tellwell Services and/or Content by Client after expiration or termination shall be deemed an infringement. 
  • MISCELLANEOUS
    1. Governing Law and Venue. The laws of the State of North Dakota shall govern the rights and obligations of the parties and the interpretation, construction, and enforceability hereof and any and all issues relating hereto, notwithstanding any conflicts of laws doctrines to the contrary.  Tellwell and Client consent to the exclusive jurisdiction and venue of the courts of the State of North Dakota in Cass County, North Dakota, and to the jurisdiction and venue of the United States District Court for the District of North Dakota for any action brought to enforce, construe or interpret this Agreement or applicable SOW.
    2. Notices.  All notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed to be duly delivered (a) upon receipt if delivered in person; (b) three (3) business days after being sent via the United States Postal Service, postage prepaid, registered or certified with return receipt requested; (c) one (1) business day after being sent by overnight delivery service (e.g., FedEx, UPS); or (d) upon transmission if sent by facsimile, email, or other electronic means with confirmation of transmission by the transmitting equipment.
    3. Assignment; Successors.  Client may not assign this Agreement in whole or in part without the prior written consent of Tellwell. Subject to the foregoing, all covenants, conditions, and obligations contained herein shall be binding upon and shall inure to the benefit of Client and their respective successors and permitted assigns.
    4. No Waiver. A waiver by a party of any breach by the other party shall not be deemed a waiver of any other, preceding, or succeeding breach of the same or any other provision, nor will any waiver constitute a continuing waiver.  All waivers must be in writing and signed by the party waiving its rights.  
    5. Independent Contractor Relationship. At all times during this Agreement, each party shall act as an independent contractor.  This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

WEB HOSTING TERMS AND CONDITIONS

 

  1. SERVICE

1.1. General.  This Terms and Conditions Agreement (this “Agreement”) covers website creation and hosting services ( the “Services”) described in the Statement of Work (“SOW”) executed in connection with this Agreement. The Services provides a way for Clients (also referred to herein as “you” or “your”) to create, modify, and/or maintain an internet website.

1.2. Purchase.  For each purchase of any Services, the parties shall execute a SOW.  

1.3. Payment.  Client shall pay all fees for the Services as set forth in the applicable SOW.  Client shall be responsible for the payment of sales or other taxes levied on Tellwell’s licensing of Content or provision of Services to Client.  If Client is not current on its undisputed payments under this Agreement, Tellwell may in its sole discretion suspend or terminate any license or Services provided under this Agreement until all outstanding amounts have been paid.  Tellwell reserves the right to require any disputed fees to be paid into escrow, pending resolution of the dispute.

1.4. Conflicts.  To the extent any provision in this Agreement irreconcilably conflicts with any provision of any applicable SOW executed herewith, the provisions of the SOW shall control.

  1. ACCOUNTS, PASSWORDS AND SECURITY

You are entirely responsible for maintaining the security of your account information, including your password, and for any and all activity that occurs under your account.  You agree to notify Tellwell immediately of any unauthorized use of your account or password or any other breach of security.  Tellwell cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.

  1. CONTENT & PROPRIETARY RIGHTS

3.1. Content. Except for Client Content (as defined below), all content made available as part of the Services, including images, designs, templates, text, graphics, images, video, information, software, audio and other files, their selection and arrangement, and all software used to provide the Services (collectively “Content”) are the property of Tellwell. 

To the extent applicable, you are granted a limited, revocable, non-sublicensable license to use the  Content solely in connection with the Services. Any use of  Content, other than as expressly authorized herein, or in any other accompanying agreement or SOW, is prohibited and will automatically terminate your rights to use the Services and any  Content.  All rights to use Content that are not expressly granted in this Agreement are reserved by Tellwell.

3.2. Client Content. You are solely responsible for all content (including without limitation text, graphics, videos, audio, photographs, logos and other branding (including trademarks, service marks, and trade names), and any other materials) provided by or through you as part of your use of the Services (collectively, “Client Content”).  It is your responsibility to ensure that all such Client Content complies with this Agreement and that your use of the Services does not violate this Agreement.  Tellwell cannot and will not monitor, edit, censor, or otherwise interfere with information or Client Content you may retrieve from sources other than Tellwell.

If you have asked Tellwell to copy a website that you own or insert images that you supplied, Tellwell assumes that you own the copyright or have permission to use the images.  Tellwell assumes no responsibility for copyright infringement if infringing content is copied from a website you own or supplied by you.  You, the website owner, are solely responsible for all copied or supplied Client Content.

All Services provided by Tellwell, including any website created by you or for you by way of the Services, may be used for lawful purposes only. Tellwell does not monitor, edit, censor, or take responsibility for Client Content or communications, except to the extent necessary for Tellwell to exercise its rights to determine if violations of this Agreement have occurred.

Tellwell does not own the Client Content that you furnish.  You hereby grant Tellwell a worldwide, non-exclusive, royalty-free, fully-paid, transferable, irrevocable, perpetual, and sub-licensable right to use, reproduce, modify, adapt, publish, prepare derivative works of, distribute, publicly perform, and publicly display your Client Content throughout the world in any media in order to furnish the Services to you and to perform all acts necessary to host your Client Content. 

Unless otherwise agreed in writing by an authorized Tellwell representative, any materials or information you transmit to us by any means shall be deemed non-confidential and may be used by us for any lawful purpose without compensation or liability to you.  You agree that Tellwell may use your websites as samples in advertising and other promotions and may provide links to your websites to other approved vendors for which it may receive compensation as a result of traffic and/or transactions that ensue.  The foregoing does not apply to any content or information that is subject to our privacy policy (https://tellwell.tempurl.host/privacy-policy-terms-conditions/ ).

  1. PROHIBITED ACTIVITIES

The following is a partial list of the kind of Client Content and activity that is prohibited on any website and through the use of the Services.  Tellwell reserves the right, in its sole discretion, to reject, refuse to post, or remove any posting (including private messages) by you, or to restrict, suspend, or terminate your access to all or any part of the Services at any time, with or without prior notice, and without liability, if we believe you are in violation of the terms of this Agreement.  Tellwell further reserves the right to investigate and take appropriate legal action against anyone who, in our sole discretion, violates this provision, including without limitation reporting it to, and cooperating fully with, law enforcement authorities.

You agree that you will not:

  • Upload, post, transmit, or otherwise make available any Client Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy (including without limitation disclosing any address, email, phone number, or any other contact information without the written consent of the owner of such information), hateful, or racially, or ethnically or otherwise objectionable, or that harms minors in any way
  • Impersonate any person or entity, including, but not limited to, a Tellwell employee
  • Falsely state or otherwise misrepresent any affiliation with any person or entity
  • Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Client Content transmitted through the Services
  • Upload, post, or otherwise transmit any Client Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships
  • Upload, post, or otherwise transmit any Client Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party  
  • Upload, post, or transmit unsolicited commercial email or “spam.”  This includes unethical marketing, advertising, or any other practice that is in any way connected with “spam”
  • Upload, post, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware
  • Misuse system resources with activities designed to cause harm to or monopolize the resources or capacity of any server or hardware component of the Tellwell network.  This includes, but is not limited to, the use of programs that consume excessive CPU time
  • Directly or indirectly, intentionally or unintentionally, violate any applicable local, state, national, or international law 
  • Offer for sale or sell any item, good, or service that violates any applicable federal, state, or local law or regulation, or that you do not have full power and authority, including all necessary licenses and authorizations, under all relevant laws and regulations to offer and sell
  • Solicit a third party’s passwords or personal identifying information for unlawful or phishing purposes
  • Upload, post, or otherwise transmit any Client Content that is adult in nature, such as any nudity in a sexual context
  • Send unsolicited email (spam) from a Tellwell server or reference a domain hosted by Tellwell in any spam, whether originating from the Tellwell network or not.  Tellwell has a zero-tolerance policy with respect to spam and will take swift action on spam complaints.  Should abuses be found, Tellwell reserves the right to immediately and without notice terminate the offending account and/or modify our services as a whole to ensure compliance with reasonable and acceptable email practices.

Any activity not identified above but determined by Tellwell in its sole discretion to be harmful to other clients or general operations of the network will be addressed on a case-by-case basis. The determination of whether an account is in violation of any of these policies is at the sole discretion of Tellwell.  Violation of any of the foregoing may result in tracking information being stored to identify the offending Client, and permanent restriction from using the Services.

  1. INTERNATIONAL USE; GDPR

Recognizing the global nature of the internet, Client agrees to comply with all applicable laws regarding online conduct and acceptable Client Content.  Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.  

  1. NO WARRANTY; EXCLUSIVE REMEDY

THE CONTENT AND ALL OTHER TELLWELL PROPERTY AND ANY SERVICES PROVIDED BY TELLWELL ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.”  TELLWELL MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.  Except as expressly provided in an applicable SOW, Client’s sole and exclusive remedy for Tellwell’s failure to provide Content or Services as provided herein shall be, at Tellwell’s option, repair or replacement of Content, re-performance of the Services, or refund of the applicable fees paid by Client.  

  1. INDEMNIFICATION

7.1. General Indemnification. To the extent permitted by applicable law, Client agrees to defend, indemnify, and hold harmless Tellwell and its subsidiaries, affiliates, officers, directors, agents, partners, and employees against and from any and all third party claims, lawsuits, and demands, and all associated liabilities, fines, penalties, judgments, damages, costs, and expenses (including without limitation attorneys’ fees and costs of defense)  in connection with any claim arising from or related to (a) Client Content, (b) Client use of the Services, (c) your violation of the terms of this Agreement, and (d) Client violation of any third party rights.  Tellwell may, at its election, assume the defense and control of any matter for which it is indemnified hereunder.  Client shall not settle any matter involving Tellwell without Tellwell’s consent.

7.2. Intellectual Property Indemnification. Client agrees to indemnify, defend, and hold Tellwell harmless from any third party claim that the disclosure to Tellwell or use by Tellwell of Client Content in accordance with this Agreement infringes such third party’s valid U.S. patent, copyright, or other intellectual property rights or violates any other right of such party.  Further, Client agrees to pay that portion of any final judgment (or any settlement approved by Client) awarded against Tellwell directly attributed to such claim. All defense and indemnification obligations will survive this Agreement and Client’s use of the Services.

 

  1. LIMITATION OF LIABILITY

EXCEPT AS EXPRESSLY PROVIDED BELOW, IN NO EVENT SHALL TELLWELL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE LICENSE AND/OR SERVICES FEES PAID DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.  IN NO EVENT SHALL TELLWELL HAVE ANY LIABILITY TO CLIENTFOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, EVEN IF CLIENTHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.CLIENT HEREBY ASSUMES ALL RISK FOR THE USE OF THE SERVICES AND/OR CONTENT AND THE RESULTS THEREOF AND HEREBY UNCONDITIONALLY AND IRREVOCABLY RELEASES AND DISCHARGES TELLWELL FROM ANY AND ALL LOSS, CLAIM, DAMAGE, OR OTHER LIABILITY RESULTING FROM SUCH USE.

  1. TERM AND TERMINATION

9.1. Term.  The initial term of this Agreement will be for one (1) year beginning on the date on which Tellwell commences its Services unless otherwise specified in the SOW (the “Initial Term”).  Unless earlier terminated as set forth herein, the term of this Agreement and any SOW issued herewith will automatically renew for additional one (1) year terms (each, a “Renewal Period”) after the Initial Term of the Agreement (the Initial Term and any Renewal Periods, collectively, the “Term”), unless either party notifies the other in writing at least ninety (90) days prior to the end of the then-current Term of its intent not to renew the Agreement and applicable SOW.  Notwithstanding any other provision hereof, this Agreement shall remain binding on both parties so long as any SOW issued herewith remains in effect.

9.2. Termination by Client.  Client may terminate this Agreement, or any SOW issued herewith (a) for any reason and at any time after the Initial Term of the Agreement (or applicable SOW) upon (90) days’ written notice to Tellwell; or, (b) for cause upon written notice if Tellwell materially breaches its obligations under this Agreement or applicable SOW

9.3. Termination by Tellwell.  Tellwell may terminate this Agreement, or any SOW issued herewith (a) for any reason and at any time after the Initial Term of the Agreement (or applicable SOW) upon (90) days’ written notice to client; or, immediately for cause (b) if Client breaches any provision of this Agreement or applicable SOW; or, (c) if Client fails to comply with license terms or otherwise assigns, licenses, sublicenses, or attempts to assign, license, or sublicense any of its rights or obligations under this Agreement without the prior written consent of Tellwell.

9.4. Effect of Termination.  Upon expiration or termination of this Agreement for any reason, any license granted as part of this Agreement shall be immediately and automatically revoked, Client shall (a) cease all use of the Tellwell Services and/or Content; and (b) pay all unpaid amounts due to Tellwell. To the extent permitted by law, continued use of the Tellwell Services and/or Content by Client after expiration or termination shall be deemed an infringement.

  1. COPYRIGHT CLAIMS PROCESS

You agree to abide by Tellwell’s copyright infringement claims policy posted at LINK.   Upon receiving a claim alleging copyright infringement by a complaining party (“Complaining Party”), you also agree that Tellwell may, in its sole discretion and without prior notice, disable or deactivate your website or relevant portions of your website alleged to be a violation of the Complaining Party’s rights.  If your website content is disabled or deactivated, you will receive a notice of copyright infringement, and you may provide a notice to us (a “Counter Notification”) by emailing copyrightclaims@tellwell.com  and including the following information: (a) your electronic signature; (b) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; and (c) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled and stating the reasons for this belief.  Upon receipt of a Counter Notification as described above, Tellwell shall promptly provide the Complaining Party with a copy of the Counter Notification and inform such Complaining Party that it will replace the removed material or cease disabling access to it in ten (10) business days.  Tellwell will replace the removed material and cease disabling access to it in not less than ten (10) nor more than fourteen (14) business days following receipt of the Counter Notification, unless Tellwell first receives notice from the Complaining Party that such Complaining Party has filed an action seeking a court order to restrain the alleged infringer from engaging in infringing activity relating to the material on the Tellwell system or network.

  1. MISCELLANEOUS.

11.1. Governing Law and Venue. The laws of the State of North Dakota shall govern the rights and obligations of the parties and the interpretation, construction, and enforceability hereof and any and all issues relating hereto, notwithstanding any conflicts of laws doctrines to the contrary.  Tellwell and Client consent to the exclusive jurisdiction and venue of the courts of the State of North Dakota in Cass County, North Dakota, and to the jurisdiction and venue of the United States District Court for the District of North Dakota for any action brought to enforce, construe or interpret this Agreement, or applicable SOW.

11.2. Notices.  All notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed to be duly delivered (a) upon receipt if delivered in person; (b) three (3) business days after being sent via the United States Postal Service, postage prepaid, registered or certified with return receipt requested; (c) one (1) business day after being sent by overnight delivery service (e.g., FedEx, UPS); or (d) upon transmission if sent by facsimile, email, or other electronic means with confirmation of transmission by the transmitting equipment.

11.3. Assignment; Successors.  Client may not assign this Agreement in whole or in part without the prior written consent of Tellwell. Subject to the foregoing, all covenants, conditions, and obligations contained herein shall be binding upon and shall inure to the benefit of Client and their respective successors and permitted assigns.

11.4. No Waiver. A waiver by a party of any breach by the other party shall not be deemed a waiver of any other, preceding, or succeeding breach of the same or any other provision, nor will any waiver constitute a continuing waiver.  All waivers must be in writing and signed by the party waiving its rights.  

11.5. Independent Contractor Relationship. At all times during this Agreement, each party shall act as an independent contractor.  This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

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