Please read the Terms and Conditions (“Agreement”) in their entirety. This Agreement documents the legally binding terms and conditions associated with Plastic Surgery Studios (PSS) and its products and services. This Agreement governs all preceding events and communications. You are hereby agreeing to the terms and conditions set forth in this Agreement in full as described below.
1. Scope of Services
PSS agrees to establish, conduct, and maintain various digital and print marketing products and services (“Services”) for Client in accordance with the specifications established between Client and PSS as set forth in the separate written work order or service agreement signed by Client or electronically signed by Client when “accepted” (“Work Order”). This Agreement and the terms established herein shall extend to any and all Services set for in the Work Order signed by Client.
2. Price and Payment Terms
Client agrees to pay PSS for the Services according to the terms and timeframes for completion set forth between said parties in the Work Order. Before PSS begins work, a non-refundable deposit fee is required. It will be secured and will be offset against your final invoice upon project completion. All payments shall be made in United States dollars. PSS will invoice you monthly or as agreed to in the Work Order.
Late payment is considered a breach of contract, entitling PSS to suspend work or cancel the contract. In the event of a late or overdue payment, PSS will attempt to contact Client via email or phone regarding the overdue payment. If Client’s Managed Care or Concierge Care website hosting and maintenance payment is 60 days overdue, PSS may add a banner across Client’s website, notifying Client to contact its host provider; and if Client’s Managed Care or Concierge Care website hosting and maintenance payment is 90 days or more overdue, PSS may suspend Client’s website. Any changes to the approved Project Scope document, which is incorporated by reference, are subject to additional fees and deadline extensions. After the fulfillment of the terms of the agreement stated in the Work Order, if applicable, the Services provided shall automatically renew month-to-month unless terminated as described in Section 3 below. Month-to-month agreements are subject to price increases to keep up with rising costs and inflation.
3. Term and Termination
Unless otherwise stated in the Work Order, Client or PSS may terminate Services without cause upon thirty (30) days written notice to the other party; however, Services for any product that Client has agreed to pay in monthly installments may not be terminated or canceled within the first twelve (12) months of this Agreement. In the event of termination of Services, Client agrees to pay PSS for all Services performed up to the date of termination. PSS may terminate this Agreement for breach of this Agreement immediately upon written notice to the Client. Termination for breach will not preclude PSS from exercising any other remedies for breach of this Agreement. This termination agreement supersedes any other termination agreement previously signed.
4. Ownership of Intellectual Property
Client warrants and represents that Client is the rightful owner and/or licensee of all content, including, but not limited to, all written content, stock images, photos, videos, audio, etc., that Client may provide to PSS for Services performed by PSS. Client shall indemnify, defend, and hold PSS harmless from any claims, damages, actions, judgments, costs, or attorney’s fees arising out of or related to Client’s use of any intellectual property, content, photos, videos, audio, or the like, provided to PSS. Moreover, Client accepts sole responsibility for procuring and retaining patient consent related to the reflection and use of any and all photos.
5. HIPAA Compliance
Client warrants that all information of any kind provided to and used by PSS is in compliance with the Health Insurance Portability and Accountability Act (“HIPAA”) and acknowledges that PSS will take no independent action to assure or confirm compliance with HIPAA. Any damages that may be suffered by PSS as a result of Client’s failure to comply with HIPAA shall be expressly included in Client’s requirement to indemnify PSS as outlined in Section 11 below.
6. FTP Transfers
PSS reserves the exclusive right to grant and/or deny File Transfer Protocol (“FTP”) as it deems reasonable and practical in the performance of Services. Client releases PSS of any and all responsibility related to the provision of “FTP” access and the ramifications associated with inappropriate use. If PSS has to recreate, reestablish, restore, or reapply any web files, code, programming, image, etc., that is lost, corrupted, overwritten, or skewed by Client’s FTP access, Client understands and agrees that this is a billable charge at PSS’s then-current hourly rate.
7. Ownership
Upon payment in full, Client retains sole and exclusive ownership of any and all data files, videos, and/or photographs provided by Client, and the final work product of Client’s website and/or blog. Further, Client retains sole and exclusive ownership of the final work product of Client’s marketing pages (e.g., Procedure Pages and Blog Articles). Client’s ownership shall continue indefinitely upon termination of this Agreement for any reason. Client does not retain ownership of any and all working files and/or source files of Client’s website and/or blog, including any and all working files and/or source files for the graphic design and textual content, including, but not limited to, Adobe Photoshop (.psd) and Adobe Illustrator (.ai) files. Also, Client does not retain ownership of any licensing applications, software, and/or other licensed content provided by any third party, including, but not limited to, WordPress, NextGEN, Gravity Forms, Advanced Custom Fields, ToolSet, Adobe Typekit, EmailMeForm, MailChimp, iStockphoto, Shutterstock, and People Images. PSS retains sole and exclusive ownership of any and all working files and/or source files of Client’s website and/or blog, including any and all working files and/or source files for the graphic design and textual content, including, but not limited to, Adobe Photoshop (.psd) and Adobe Illustrator (.ai) files. PSS retains sole and exclusive ownership of any and all database application software programs used in the creation and maintenance of all Services, including, but not limited to website photo galleries, website shopping carts, directory web pages, etc. Moreover, PSS exercises sole and exclusive ownership of all advertising and Pay Per Click (PPC) programs. PSS’s ownership shall continue indefinitely upon termination of this Agreement for any reason. PSS reserves all reasonable remedies to ensure and protect said interest.
8. Confidential Information
Both PSS and Client assume the responsibility of complete confidentiality at all times. They will not disclose or permit the disclosure of any confidential information including, but not limited to, marketing, sales, techniques, ideas, information, or data to a third party without prior written consent, excluding information in the public domain. All information relating to Client that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by PSS and will not be disclosed or used by PSS except to the extent that such disclosure or use is reasonably necessary to the performance of Services or is required by law. All information relating to PSS that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by Client and will not be disclosed or used by Client except to the extent that such disclosure or use is reasonably necessary to the performance of Client’s duties and obligations under this Agreement or is required by law. These obligations of confidentiality will extend for a period of two (2) years after the termination of this agreement, but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.
9. Warranty and Disclaimer
PSS’s Services are provided without any warranties, express or implied. Any warranty implied by statute or law is excluded to the maximum extent permitted. PSS will provide Services in a professional, skillful manner, and in conformity with generally prevailing industry standards. PSS makes no implied warranties whatsoever concerning its Services, including matters relating to the merchantability of its Services or their suitability for any particular purpose. No express warranty is made regarding any Services unless set forth herein. If PSS shows Client any model or sample of Services, that model or sample was merely used to illustrate the general type and quality of Services and does not represent that Services would necessarily conform to the model or sample. Further, PSS makes no warranty, either express or implied, regarding the accuracy or validity of any information or material supplied by Client under this Agreement, and PSS has no obligation to conduct any independent investigation or research concerning any information provided or supplied by Client.
10. Limitation of Liability
PSS will provide Services in a professional and workmanlike manner. Under no circumstances is PSS or its employees, officers, directors, or affiliates liable for any losses due to delay in service deliverables, where the delay is because of unforeseen, natural, or ungovernable causes. In no event will PSS be liable for any loss of profit or revenue by Client, or for any other consequential, incidental, punitive, indirect, or economic damages incurred or suffered by Client arising as a result of or related to PSS’s Services, whether in contract, tort, or otherwise. Client agrees that the total liability of PSS for all claims of any kind arising as a result of or related to the Agreement, or to any act or omission of PSS, whether in contract, tort, or otherwise, will not exceed an amount equal to the amount Client paid to PSS for Services during the twelve (12) month period preceding the date the claim arises. If you are advised on potential losses, the limitations of liability still apply.
11. Indemnification
Client shall indemnify, defend, and hold PSS harmless from any liability, action, claim, or damages whatsoever, based or asserted by a third party, including but not limited to all costs, expenses, attorney’s fees, and judgments incurred by PSS therein, arising out of or in conjunction with Client’s performance under or breach of this Agreement.
12. Responsibilities of Client
For PSS to provide Services effectively, Client shall be solely responsible for the following:
- Providing and/or approving relevant and appropriate copy
- Providing any and all assets necessary for the project, including but not limited to: logos, photographs, videos, and copy.
- Providing all necessary sales and marketing information applicable to the project
- Cooperating with respect to the efforts made by PSS to obtain feedback on Services, including but not limited to design, copywriting, editing, PPC campaigns, marketing reports, print materials, etc.
- Timely communicating with PSS throughout the process, including reviewing and approving projects (see Sections 13 and 14 below).
13. Client Review and Approval
Client understands and agrees that Client is responsible for reviewing and approving projects, including but not limited to content writing and homepage design. PSS will give Client a minimum of fifteen (15) days in which to review and approve such projects. If, after fifteen (15) days, Client has not informed PSS of any change requests Client wishes PSS to make to the project, Client understands and agrees that PSS will assume Client’s approval and move forward with the project. Thereafter, any change request by Client will be billable at PSS’s then-current hourly rate. (PSS will not launch Client’s website without written approval signed by Client.)
14. Client Abandonment
If Client is unresponsive for thirty (30) days, PSS reserves the right to pause Client’s project. If Client resumes communication after PSS pauses Client’s project, Client understands and agrees that PSS will only resume working on Client’s project when service capacity reopens. If, after three (3) months, Client fails to constructively communicate to PSS regarding Client’s project, preventing that project from moving forward, Client understands and agrees that PSS will assume Client has abandoned the project and will archive it. If, after archiving said project, Client wishes to move forward with the project, Client understands and agrees to pay PSS a fee equivalent to four (4) hours billable at PSS’s then-current hourly rate to unarchive said project. Any needed updates and adjustments to the archived project will also be billed at PSS’s then-current hourly rate.
15. Content for Website
Unless otherwise stated in the Work Order, website design does not include content writing. Content provided by Client will be taken “AS IS,” and PSS will not edit Client’s content for spelling or grammar before adding it to the website. If Client wants PSS to edit content provided by Client, Client understands that this is a billable charge at PSS’s then-current hourly rate. PSS has stock content available for Client to use, if desired, at no additional cost to Client. If Client wants PSS to edit the stock content, Client understands that this is a billable charge at PSS’s then-current hourly rate.
16. Chargebacks
Client agrees that any amount due from Client to PSS resulting from a credit card chargeback will be subject to a four percent (4%) fee on the amount due. If any check provided by Client to PSS is returned from PSS’s bank for insufficient funds or any other reason, Client shall be responsible for all fees and costs incurred by PSS associated with such return.
17. Advertising
Client understands and agrees that PSS may use Client’s website design or online digital marketing or a graphic representation of Client’s website design or online digital marketing that PSS creates for Client in PSS’s advertising or trade or for any other lawful purpose, in all forms and media, including PSS’s Case Study Gallery.
18. Force Majeure
If either party is unable to comply with any provision of the Work Order due to causes beyond its reasonable control, and which could not have been reasonably anticipated, such as acts of God, acts of war, civil disorders, or other similar acts, such party shall not be held liable for such failure to comply.
19. Governing Law and Jurisdiction
These Terms and Conditions will be governed by construed in accordance with California law. PSS and Client agree that for any dispute arising concerning the Agreement or Services, the proper venue shall be the Superior Court for the County of San Bernardino, in the State of California. Either party may attend any court hearing and/or proceeding telephonically or via video services, including, but not limited to, Facetime, Skype, Zoom, or Google Meet, unless ordered by the Court to attend any court hearings and/or proceeding in person.
20. Severability
If any provision of this Agreement becomes illegal, null, or void for any reason, or is held by any court of competent jurisdiction to be invalid, unlawful, or for any other reason unenforceable under applicable law, it shall be deemed severable and will not impact or affect the validity or enforceability for the remaining provisions. Any invalid, unlawful, or unenforceable provision will be deemed as such and deleted; the rest of the provisions will continue to remain in full force and effect.
21. Time Is of the Essence
Time is of the essence for the performance of this Agreement. This Agreement may be executed in any number of counterparts, all of which together shall constitute one and the same instrument. This Agreement may also be executed and transmitted via facsimile or electronic mail. Each of the parties warrants and represents that they have the authority and right to execute this Agreement and carry out the obligations set forth herein. In any action arising between the parties concerning this Agreement, the prevailing party shall be entitled to the recovery of reasonable attorneys’ fees and costs.
22. Consent for SMS Messaging
Client gives consent and permission to receive SMS messaging from PSS or others acting on behalf of PSS. As part of this consent, Client represents and warrants the following: (1) Client is the owner or authorized user of the mobile phone number(s) Client provides to PSS; (2) PSS or others acting on behalf of PSS may send Client SMS messages in various formats and with various contents, including but not limited to, text messages about work PSS is providing for Client; (3) Client will notify PSS immediately if Client is no longer the owner or authorized user of the mobile phone number(s) Client provides to PSS; and (4) Client is solely responsible for any and all message and data rates charges associated with such SMS messaging. Client may opt out of receiving SMS messaging from PSS or others acting on behalf of PSS by calling 1-909-758-8300 or by texting STOP to the phone number that sent the SMS message.
23. Miscellaneous Provision
No modification of the Work Order(s) shall be binding unless executed in writing by all of the parties. No waiver of any provision of this Agreement shall be deemed a waiver of any of the other provisions of this Agreement, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless made in writing and executed by the party making the waiver. This Agreement shall be binding upon and shall inure to the benefit of the heirs, executors, administrators, successors, assigns, licensees, partners, and agents of the parties to this Agreement. The captions heading the various sections of this Agreement are for convenience and identification only and shall not be deemed to limit or define the contents of the respective sections.
24. WordPress/Plugin Upgrades
PSS builds the majority of its clients’ websites on the WordPress framework. At this time, PSS finds the WordPress framework to be the most efficient, flexible, and cost-effective framework available for its customers. There are hundreds of community volunteers working to enhance and evolve the core WordPress software, and there are thousands of plugins and add-ons created and supported by thousands of developers to add additional features to WordPress. As the Internet evolves, so must the software that powers Client’s website. PSS prides itself on the quality of the websites it designs, builds, and launches. Many of PSS’s customers appreciate the flexibility its sites offer for future development, maintenance, and updates. Because PSS uses the most standardized and widely used web framework, its clients are not locked into its services for support and maintenance and are free to use other developers for upgrades, maintenance, or future development services. PSS strongly urges its customers to choose a maintenance plan with PSS that will keep their WordPress install up-to-date with not only core WordPress features but also important security updates. In addition to the core WordPress software, all third-party plugins and add-ons should be updated whenever their respective creators offer an update. Unlike most websites in the medical industry, Client will own the website PSS designs and builds for Client (see Section 7 above). Therefore, it is Client’s sole responsibility to update Client’s website, plugins, and add-ons or contract with a developer to do so. PSS strongly recommends that whoever is responsible for Client’s updates follows the recommended WordPress process, including backing up all Client’s files and databases in such a way as to quickly restore a previous version if an update is not successful. PSS is not responsible for any updates to Client’s website or plugins made by any third party. Therefore, if Client, Client’s employee, an outside developer, or anyone other than PSS updates Client’s WordPress software or plugins and Client’s website no longer functions properly, Client agrees Client will not hold PSS responsible. Upon Client’s request, PSS will assist in the recovery of Client’s website, and Client understands and agrees that this is a billable charge at PSS’s then-current hourly rate.
25. Entire Agreement
The terms and conditions described in this Agreement, along with any other legal notices and disclaimers posted, including but not limited to PSS’s Privacy Policy, Accessibility Statement, Refund Policy, and Hosting Agreement, which are incorporated by reference, constitute the entire agreement between Client and PSS. The most current version of this Agreement and Legal Notices supersede all previous agreements. PSS reserves the right to modify or update this Agreement and Legal Notices at any time and without notice to Client.
Accepting this Agreement constitutes your formal acceptance of all updated terms and conditions in this Agreement and Legal Notices. It is Client’s responsibility to monitor and check for updates to this Agreement and Legal Notices. Should Client object to any of the terms and conditions contained in this Agreement or Legal Notices, Client should contact PSS right away.
If you have any questions or concerns regarding the terms and conditions described in this Agreement or other Legal Notices, please contact PSS using the information below.
https://www.plasticsurgerystudios.com/contact/
8659 Haven Avenue, Suite 200, Rancho Cucamonga, CA 91730
legal@plasticsurgerystudios.com
Last updated on March 16, 2023.
