FII MARKETING TERMS OF SERVICE
Effective March 1 , 2021.
These Terms of Service (“Terms of Service”) govern your relationship with Financial Innovations, Inc., d/b/a FII Marketing, and FII’s ecommerce services for design of a website, including any subdomains, as well as any online virtual properties relating to the same, including without limitation design of websites and webpages, mobile applications, mobile websites, social media channels and other online-based informational services operated by FII (collectively referred to as the “Site”) for you. In connection with the building and designing the Site, FII shall produce merchandise advertised on the Site and fulfill online orders from your customers (collectively, the “Services”).
For purposes of these Terms of Service, “FII,” and “our” refer to Financial Innovations, Inc. “Client,” “you,” and “your” refers to you, the person or entity for whom the Site is designed.
You must accept these Terms of Service prior to the rendering of any services by FII on behalf of your Site. If you do not accept this Agreement, no services will be rendered, and you will have no right to the Service.
Merchandise sold on your Site may be produced “Print-On-Demand” with product manufactured after retail purchase. Or you may produce merchandise in bulk to be “Stocked” and distributed as needed. The term “Hybrid” shall refer to catalogs containing a mix of Print-On-Demand and Stocked products.
The term “Initial Steps” shall mean the payment of the “Initial Payment” fee (Section 2(a)) to FII, establishing a “Subscription” (Section l(b)) and providing “Content” (Section 3(a).
1. FEE STRUCTURE
- a) Web Development. A fee of One Hundred ($100) Dollars per hour shall be charged for all web development. This includes content management and technical support. Notwithstanding the foregoing, any web development and image rendering requested by Client to be completed within 48 hours of such request shall be subject to a 25% surcharge.
- b) Client shall be responsible for the payment of any third-party services it subscribes to. There are no subscription fees charged by FII other than those set forth herein.
- c) Art Setup Fee. A fee of Fifty ($50) Dollars shall be charged for each unique Print-On-Demand design. The art set up fee for all other print methods are quoted at time of reviewing art.
- d) Product Cost. Product cost will be determined at the time the merchandise selections and designs are finalized and will be provided in writing for you to accept. Prices may change at reorder.
- e) Retail Customer Service. By default, a fee of Fifty ($0.50) Cents per order shall be charged to provide site users with customer service. You may opt out of utilizing this service, thereby avoiding its fee. Should you opt out of this service, yet make requests of FII tantamount to it, FII reserves the right to, in its sole discretion, reinstate the fee.
- f) A fee of Three Dollars Sixty ($3.60) Cents per order shall be charged for order fulfillment services. Stores with less than 10 monthly orders will be billed a $35 dollar minimum.
- g) Shall be billed at the market rate incurred by FII to ship client orders.
- h) Graphic Design. A fee of One Hundred ($100) Dollars per hour shall be charged for the design of original or heavily modified art concepts and for the recreation of art when a suitable art file is unavailable.
- i) Image Renderings. A fee of Twenty-Five ($25) Dollars shall be charged for each image rendered. After One (1) Round of edits, additional graphic design fees may apply.
- j) Credit Card Fee. A fee equal to Three (3%) Percent of the total invoice shall be added to any FII invoice paid with a credit card.
- k) Web Support. As used herein, “Support” is defined as any assistance provided by FII for the Site after the initial web development. This includes, but is not limited to, content management, technical assistance, research and consultation. All sites receive complimentary web support for 30 days after Client is presented the completed site for qualitative analysis by FII.
- Support with Subscription. Client shall have the option to enter into an ongoing support subscription with FII (the “Subscription Service”) at an hourly rate of $125. Client shall determine how many hours each month it wishes to purchase. Client is billed the desired monthly hours multiplied against the $125 rate at the end of each month (*plus potential additional hours). Unused hours carry over to the next month, but shall expire 60 days after the last day of the original month. *In the event that service hours consumed exceed the amount in the monthly subscription, additional time is billed at $150 / hour. Clients with Support Subscription are given priority against clients without, even when exceeding their hourly budget.
- Support without Subscription. Any Client who has not opted into the Subscription Service shall (i) request such service in writing to FII and FII shall provide a time estimate for providing such support for Client’s approval and (ii) shall pay FII a rate of $150/hr for such support.
- General Support. FII shall have the sole and absolute right to conduct unsolicited maintenance of the website for purposes of fulfillment, API integration, and/or site language managing Client’s expectations for delivery. In the event of any maintenance pursuant to this Section, FII shall bill Client for the reasonable cost of such maintenance.
- Rush Support. Any request from Client requiring implementation by FII within 48 business hours is subject to a 25% surcharge on FII’s billing rates then in effect.
2. BILLING STRUCTURE
- a) Initial Payment. Prior to FII rendering its services, Client shall be invoiced for, and required to pay, the initial total web development, art setup, and image rendering fees estimated to complete your project. FII’s services shall not begin until (i) Content and any artwork or proofs relating thereto is approved by FII, (ii) a $100 non-refundable deposit is made by Client, (iii) Client has provided FII accurate billing information and (iv) Client has accepted these Terms of Service.
- b) Web Development. Upon completion of rendering services Client shall be invoiced for the cost of web development. Notwithstanding the foregoing, any changes to Content requested by Client may, in FII’s sole and absolute determination, be subject to additional reasonable fees hereunder.
- c) Print-On-Demand Product Cost. Each month Client shall be invoiced for the costs of products sold during the previous month.
- d) Stocked Product Cost. The cost for stocked product shall be invoiced at the time at which it is received into FII’s distribution center.
- e) Each month Client shall be invoiced for the total cost of postage for orders shipped during the previous month.
- f) Each month Client shall be invoiced for the total cost of fulfillment for orders shipped during the previous month.
- g) Terms: Client shall remit payment for the invoice within fifteen (15) days of invoice date. At thirty (30) days after the invoice date, the credit card on file will be processed for outstanding amount.
- h) On or before the fifteenth (15th)day of each calendar month, FII shall supply you a “Report” detailing all transactions processed in the prior calendar month.
- i) Your monthly Print-On-Demand invoice will include a report detailing all products sold in the prior month, as well as postage and handling charges for all orders shipped. Any returns or replacement products approved by you in accordance with Section 4(c) hereof will be included on the invoice.
- j) Pre-Sale of Goods. In the event Client has requested, and FII has granted, the right to “pre-sell” goods on the website, Client shall be fully responsible and shall indemnify FII for any costs relating to (i) chargebacks, (ii) unanticipated delays from FII’s suppliers (iii) managing customer expectations relating to shipment dates, or (iv) customer complaints relating to delayed deliveries of goods, in any case arising out of or in any way relating to the pre-sale of goods.
- a) The term “Content” means all information, text, logos, images, designs, data, trademarks, links, other material or intellectual property given by you to FII for performance of the Services.
- b) Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to you to use the Site, unless you have received our prior written permission.
- c) Accuracy; Authority. If you choose to provide Content, you agree that you will provide accurate, complete and up to date Content to FII. You hereby represent and warrant that (i) you are the sole owner of the Content and that you have an unrestricted right and authority to use, copy, distribute and license the Content to FII and (ii) there are no pending or threatened lawsuits, claims, or demands involving, arising from or relating to your Content.
- d) FII shall not be responsible or liable for the conduct of users or for views, opinions and statements expressed in Content submitted for display through the Site. FII does not prescreen Content submitted to our Service. With respect to such Content posted on or through the Site, FII acts as a passive conduit for such distribution and is not responsible for such Content. Any opinions, advice, statements, services, offers or other information in the Services provided by you are those of the respective author(s) or distributor(s) and not of FII. FII neither endorses nor guarantees the accuracy, completeness, or usefulness of any such Content. You are responsible for ensuring that Content submitted to the Site is not provided in violation of any copyright, trade secret or other intellectual property or ownership rights of another person or entity or of any applicable law. You shall be solely liable for any damages resulting from any infringement of copyrights, trade secret or other intellectual property rights, or any other harm resulting from your uploading, posting or submission of Content to the Site. You shall be solely liable for any chargebacks attributable to delayed fulfillment as a consequence of the decision to pre-sell product, continue to sell out of stock product or to sell product without available source. You shall be solely liable for any damages resulting from your decision to offer international shipping.
- e) FII has the right, but not the obligation, to monitor Content to determine compliance with these Terms of Service and any other applicable rules that FII may establish from time to time. Without limiting the foregoing, FII has the right to remove any material that FII, in its sole discretion, finds to be in violation of these Terms of Service or otherwise objectionable, and you are solely responsible for the Content posted on or through our Site.
- a) Customer Service. The Site, and all interactions with customers, shall be operated, undertaken and maintained solely by FII with the purchaser through email or phone contact or posted. In addition to and in connection with the foregoing and FII’s operation of the website, Client hereby agrees that by contracting with FII to build the website pursuant to these Terms of Service, FII shall use Shopify® for such website creation and that Client acknowledges and consents to Shopify’s terms of service in addition to these Terms of Service.
- b) On-Demand Production. FII shall process and ship any On-Demand purchases received from your customers in approximately five (5) to ten (10) business days of such order.
- c) n-Demand Returns As FII produces certain product on demand per customer order, FII will only accept returns that are a direct result of a production error. You may accept all other returns from your customers, which will be shipped directly to, and dealt with solely by, you. Any refunds or replacement products will be charged to you when shipped.
- d) Inventory Distribution. FII shall process and ship any Hybrid inventoried product orders received from your customers within two (2) business days of such order. If FII is incapable of processing an order within two (2) business days due to increased demand or lack of inventory, FII shall notify you within one (1) business day and make an appropriate notification on the Site
- e) Inventory Returns. Incorrectly shipped or damaged Inventoried product can be returned to FII at FII’s expense. Replacement product will be shipped at no further expense upon receipt by FII of original shipment.
- f) Web Development and Support. FII shall render Web Development and Support per Client’s specifications upon request within the timeframe articulated to Client at time of making request. FII reserves the right to solely manage API used for order fulfillment and to solely manage SKU and Vendor attributes on Shopify product pages.
FII may need to, in its sole discretion, invest in small inventories of partial embellishments to produce On-Demand product. If sales of a product do not reach 60 units within the first 90 days after posting to Site, FII reserves the right to invoice you for the cost thereof, which shall not exceed Two Hundred Fifty ($250.00) dollars per design. This provision shall not apply to the initial 4 products of the same design created upon payment of the Initial Payment listed in section 2(a).
By using our Service, you agree to indemnify, hold harmless and defend FII and its officers, directors, employees and agents from any claims, damages, losses, liabilities and all costs and expenses of defense, including but not limited to attorneys’ fees, resulting directly or indirectly from a claim by a third party that arises in connection with the Site’s use of the Content and/or any breach of your representations, warranties or obligations (including payment of fees) set forth in these Terms of Service or any other agreement between Client and FII. Client agrees that under no circumstance shall FII be liable to Client for any suspension of payments to Client in the event Shopify® suspends payments due to its internal fraud prevention policies in effect from time to time. Client further agrees that FII shall not be liable or responsible for the delivery of any feature, function or integration with the website that is not explicitly noted in any applicable statement of work, or for maintenance of the website in any way not defined in any applicable statement of work, after the initial website opening. FII shall, in good faith, pursue the highest achievable accuracy when generating computer-generated “mockup” images, but shall not liable to Client for the accuracy of any computer-generated imaging. Client further agrees that FII shall not be liable for damages resulting from Client making a change to the Site that disrupt the normal fulfillment of orders.
7.INTELLECTUAL PROPERTY RIGHTS
- a) You agree and acknowledge that the structure, organization and code used in conjunction with the Site and Services are proprietary to FII. You shall not, and shall not permit any person or entity to: (i) alter, enhance or make derivative works of the Site or Services; or (ii) reverse engineer, reverse assemble or decompile or otherwise attempt to derive source code from the Site or any software. Component of the Site.
- b) FII does not claim ownership of the Content under these Terms of Service, however, Content posted through the Site may be made publicly accessible through our Site. By submitting such Content, you grant FII a world-wide, royalty-free, non-exclusive license to use, distribute, reproduce, adapt, and display such Content. This license shall remain in effect until FII deletes the Content from its systems.
8. REPRESENTATIONS AND WARRANTIES
In addition to any other representations and warranties set forth in these Terms of Service, you hereby represent and warrant to FII, and FII hereby represents and warrants to you, that: (a) each party has full power and authority to enter into and perform these Terms of Service; (b) the execution of these Terms of Service and performance of each party’ s obligations will not breach, or materially conflict with, any other agreement to which either party is bound; and (c) each party understands and agrees that these Terms of Service are a legal, valid, and binding obligation enforceable by law according to its terms and conditions.
9. JURISDICTIONAL ISSUE
FII makes no representation that information on the Site will be appropriate or available for use outside the United States. Those who choose to access the Site from outside the United States do so on their own initiative and at their own risk and are responsible for compliance with applicable local laws
FII DOES NOT WARRANT THAT: (a) THE INFORMATION AVAILABLE ON OUR SITE IS FREE OF ERRORS; (b) THE FUNCTIONS OR SERVICES (INCLUDING BUT NOT LIMITED TO MECHANISMS FOR SENDING AUTOMATED EMAILS OR THE DOWNLOADING AND UPLOADING OF CONTENT) PROVIDED BY THE SITE OR THE SERVICES WILL BE UNINTERRUPTED, SECURE OR FREE OF ERRORS; (c) DEFECTS WILL BE CORRECTED, OR (d) THE SITE OR THE SERVER(S) THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
NEITHER FII NOR ITS AFFILIATES OR LICENSORS ARE RESPONSIBLE FOR THE CONDUCT BETWEEN USERS OF THE SITE. FII AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU OR YOUR CUSTOMERS WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
11. LIMITATION OF LIABILITY
- a) IN NO EVENT SHALL FII BE LIABLE TO YOU, ANY OTHER USER OF OUR SERVICES, SUBSCRIBERS, CUSTOMERS OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFIIS, LOSS OF DATA, LOSS OF USE OR COSTS OF OBTAINING SUBSTITUTE PRODUCTS OR SERVICES) ARISING OUT OF THE USE, INABILITY TO USE, UNAUTHORIZED ACCESS TO OR USE OR MISUSE OF THE SERVICES, CONTENT OR ANY INFORMATION CONT ATNED THEREON, WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF FII HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. NO SUIT OR ACTION SHALL BE BROUGHT AGAINST FII MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS ACCRUED. THE TOTAL LIABILITY OF FII TO YOU AND/OR ANY OTHER PARTY FROM ANY LAWSUIT OR CLAIM SHALL NOT EXCEED FIVE HUNDRED ($500.00) DOLLARS. THE EXISTENCE OF MULTIPLE CLAIMS RELATED TO THE SAME ISSUE SHALL NOT ENLARGE OR EXTEND THIS LIMIT.
- b) Waiver of Class Action. ANY CLAIMS BROUGHT BY YOU OR FII MUST BE BROUGHT IN THAT PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER TN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU HEREBY WAIVE ANY AND ALL RIGHTS TO BRING ANY CLAIMS RELATED TO THESE TERMS OF SERVICE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
- a) Either party may terminate these Terms of Service at any time, for any reason whatsoever, by providing thirty (30) days written notice to the other party. At the expiration of such thirty (30) day period, the “Termination Date,” FII shall cause the Site designed for you to be inaccessible on the internet.
- b) Hybrid inventory remaining will be shipped at your expense to a location you specify once all outstanding invoices have been settled. Any product not removed from warehouse after thirty (30) days from Termination Date becomes the property of FII.
- c) Any excess inventory held by FII for your benefit pursuant to Section 5 above shall, upon termination pursuant to this Section 12, be purchased by you.
- GOVERNING LAW; DISPUTE RESOLUTION
- a) These Terms of Service shall be governed exclusively by and construed in accordance with the laws of the State of Rhode Island without resort to conflict of laws rules. All disputes arising out of or relating to these Terms of Service shall be finally resolved by arbitration before a single arbitrator conducted in the English language in Providence, Rhode Island, S.A. under the Commercial Arbitration Rules of the American Arbitration Association (AAA).
- b) You and FII shall appoint as sole arbitrator a person mutually agreed by you and FII or, if you and FII cannot agree within thirty (30) days of either party’s request for arbitration, such single arbitrator shall be selected by the AAA upon the request of either party.
- c) The parties shall bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys’ fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent
14. UNSOLICITED IDEAS AND FEEDBACK
If you send feedback, ideas or suggestions (collectively, “Unsolicited Ideas”), you agree that: (a) your Unsolicited Ideas become the property of FII and you are not owed any compensation in exchange; (b) none of the Unsolicited Ideas contain confidential or proprietary information of any third party; (c) FII may use or redistribute Unsolicited Ideas for any purpose and in any way; (d) there is no obligation for FII to review your Unsolicited Ideas; and (e) FII has no obligation to keep any Unsolicited Ideas confidential.
- a) You may not assign or transfer your rights or obligations under these Terms of Service in whole or in part to any third party without the consent of FII.
- b) Notwithstanding the foregoing sentence, you shall be permitted to assign your rights to payments from Shopify.com to a third-party, provided that, you give FII prompt written notice of which third-party is being designated to receive such payment
- c) These Terms of Service shall bind and inure to the benefit of the parties to these Terms of Service and their respective successors, permitted transferees, and permitted assignments. FII and you are independent contractors and are not partners, joint ventures, agents, employees or representatives of the other party.
- d) These Terms of Service contain the entire understanding of the parties with respect to the transactions and matters contemplated hereby, supersedes all previous communications, understandings and agreements (whether oral or written) other than any click-through or end user license agreement provided by FII or any subscriber agreement, and cannot be amended except by a writing signed by both parties or by FII‘s posting of an amended version of these Terms of Service on FIIMarketing.com.
e) The headings and captions used in these Terms of Service are used for convenience only and are not to be considered in construing or interpreting these Terms of Service. If any part of these Terms of Service is held to be unlawful, void, or unenforceable, that part will be deemed severable and shall not affect the validity and enforceability of the remaining provisions.