Policies, Terms and Conditions

Posted 02.26.2013
Revised 10.26.2014

OpticalPracticeMarketing.com Licensing and Service Agreement

By agreeing to the policies, terms and conditions referred to on the website to which this Agreement is electronically linked, you, on behalf of the legal entity that is the Eye Care Professional company (hereinafter “Customer”) wishing to use the Services of OPM in accordance with this Agreement, are entering into this Agreement with Optical Practice Marketing, a service of danbailey.com, located at 4880 Lower Roswell Road, Suite 165, Marietta, GA 30068 (herein referred to as “OPM”) and certifying that you have the legal authority to enter into this Agreement. Customer and OPM together are referred to as the “parties” in this Agreement. For purposes of this Agreement, if a Customer has multiple divisions, locations, or operating entities that are using OPM services (such as one company owning several locations), each separate division, location, or operating entity is considered a separate Customer.

In consideration of the mutual covenants and promises contained in this Agreement, the parties agree as follows:

1.            DEFINITIONS:
a. "Agreement" means this document. This Agreement constitutes a legal and binding contract between OPM and Customer. It does not create any right for the benefit of another person or entity.
b. “Service” or “Services” means the services described below that are provided to Customer by OPM, including but not limited to those provided by a third-party supplier or sub-contractor through OPM without direct communication between Customer and the third-party supplier or sub-contractor.

2.            GENERAL DESCRIPTION: As an Internet Technology and Marketing Services Provider, OPM provides Internet web site services, domain registration, print marketing material design, video production and associated services, all of which are referred to in this Agreement as the "Service," "Services," or “Custom Services.” For the OPM Website (OpticalPracticeMarketing.com) and for provided web site Services, OPM leases a server computer and other equipment (collectively, the "Network") from one or more sub-contractors. The Network is integrated with the Internet and sends and receives data and information via the Internet. Customer will use OPM Services in the creation of a web site, marketing materials, videos and other product and service offerings by using the various resources of OPM's Network and OPM's Services. The quantity, type, and duration of Services described below provided to Customer are those requested by Customer via electronic submission, in writing, or orally. Some services, including but not limited to printed materials and videos, will be facilitated by OPM and provided by a third party supplier or sub-contractor.

3.            SERVICES: The following is a list of the Services provided by OPM. All Services, including Custom Services provided or performed by OPM but not listed here, are subject to this Agreement. Customer specifically understands and agrees that OPM does not check its work for conflicts with existing copyrights, trademarks, service marks or other similar devices.
a. OPM Basic Service. The Basic Service provides Customer with the OPM Website, access to the OPM library of print marketing material designs and other design and production services as described on the OPM company website. The fees for the OPM Basic Service are paid monthly monthly in advance. If Customer cancels the Service, OPM is not obligated to refund any fees collected, in whole or in part. OPM may unilaterally discontinue Service to Customer upon 30 days notice and will issue a refund of any prepaid fees, pro-rated for the unused portion of the Service, with the exception that OPM may suspend or deem abandoned a project as provided in Section 7 without advance notice. OPM makes no claim, assurance, or warranty of “up-time” for the network.
b. ECP Website. OPM provides websites based on the templates and features built into the OPM database-driven site builder, the ECP Website. The ECP Website is designed to be used by Customer to add its own content, images and information. The ECP Website controls and Help features are designed to assist Customer to use the Service and it is expected that a Customer that is an experienced Internet user should be able to use the ECP Website to the extent of its intended design. OPM provides ECP Website Assistance to those Customers needing assistance in understanding and/or using the various features of the ECP Website at an additional charge.
c. ECP Website Assistance. OPM offers Customers assistance with using the ECP Website at additional charges specified on the “Setup Assistance” page of the Customer section of the OPM Website. Assistance is given based on time spent with Customer in packaged, fixed-price blocks as described on the Setup Assistance page of the OPM Website or by the hour. There are no refunds or adjustments for these time-based Services. If Customer still needs assistance after receiving the ECP Website Assistance the Customer should consider the Fully Managed Service.
d. Personalized Domain Name Service. In order for the ECP Website to operate with an integrated, personalized domain name such as www.practice_name.com, Customer must purchase the Personalized Domain Name Service. If Customer already owns a domain name it wishes to integrate with the ECP Website, Customer agrees (1) to provide OPM with its Domain Name Registration account log-in information and hereby authorizes OPM to make changes OPM deems necessary for Customer’s domain to operate with the ECP Website, or (2) to make the necessary changes to its domain name record and to notify OPM upon completion of the changes. If Customer does not already have a domain name, Customer agrees to provide OPM with an available domain name, authorizes OPM to use the www.GoDaddy.com service to purchase that domain name on behalf of Customer and to set the domain record to operate with the ECP Website, agrees to read and adhere to the GoDaddy.com Terms of Service for domain registration, and authorizes OPM to accept the GoDaddy.com Terms of Service on behalf of Customer in order to enable integration of Customer’s domain with the ECP Website. Once the domain name is set up, OPM will add Google Analytics programming code to the OPM system so that site visit statistics are gathered. Customer agrees to provide OPM with a Gmail email address in order for Customer to access those statistics. On both the Google and the Bing webmaster services, OPM will register the Customer’s domain name, verify the website, and submit a sitemap.xml setting. The cost of annual renewals of the domain name are not included with the service.
e. Site Setup Service. If Customer purchases this Service, OPM will interview Customer and give Customer a list of pictures, images and text Customer needs to provide to complete the site. OPM will then use those items to re-write or edit the text sections provided, and install digital logos and format pictures for use on the website.
f. Site Maintenance Service. OPM will handle maintenance of the site, pictures, images, and text provided by Customer for up to one hour each month (unused time expires at the end of each month).
g. Logos. OPM designs logos for businesses to use in their printed and electronic media. Logo designs based on a fixed-price basis will include: Step 1 - three designs for review; Step 2 - up to two of those original designs may be revised once; Step 3 - one of the designs from Step 2 may be revised once; Step 4 – final revision to the design used in Step 3. Any additional revisions or changes will be made as an Hourly Service in addition to the original fixed price. Digital files will be provided in .jpg, a vector-based .eps file, or PDF, as appropriate.
h. Print Marketing Materials. OPM provides print material templates that it modifies to add Customer’s name and template text portions. It then provides digital print files to OPM third-party suppliers for production. The Customer will handle payment for printed materials directly with the third-party supplier and the Customer agrees to accept all responsibility for proofing any print files before having them printed. Customer also agrees that OPM is not responsible for any print costs, or associated costs of any kind, regardless of any error on the part of OPM or the use by Customer of any third-party production service that OPM may use or refer Customer to for this or any other print-related service.
i. Post Card Programs. OPM provides post card mailing programs that include the printing of 9” x 6.5” post cards with a design based on our post card templates displayed on the OPM Website. OPM modifies the templates to add Customer’s name and template text portions, and then provides digital print files to the OPM third-party suppliers for production. The third-party supplier will, after acceptance of the print proof by Customer, have the postcards printed, determine the delivery routes based on Customer’s target area, prepare the postcard bundles for distribution using the U.S. Postal Service Every Door Direct Mail – Retail program, and ship the postcards to the appropriate U.S. Postal Service for delivery. The Customer agrees to accept all responsibility for proofing any print files before having them printed. Customer also agrees that OPM is not responsible for any print costs, or associated costs of any kind, regardless of any error on the part of OPM or the use by Customer of any third-party production service that OPM may use or refer the Customer to.
j. Hourly Services. Unless a fixed-price proposal for Custom Services with a description of Custom Services to be performed is tendered to the Customer, all Services not specifically referred to in this Section are performed on an hourly basis at OPM’s prevailing hourly rates, billed in thirty-minute increments, with a one hour minimum. The current hourly rate is $90 per hour.
k. Custom Services. These are Services that are performed according to a written proposal to a customer containing custom specifications chosen by the Customer. This Agreement is incorporated by reference in every Custom Services proposal, and is deemed accepted by the Customer as an integral component of that proposal. Payment for Custom Services shall be made as specified in the written proposal. Custom Services typically require an advance down payment specified by OPM and payment of the balance of fees as set forth in the proposal.  When OPM offers Custom Services on a “fixed price” basis rather than on an hourly basis, that fixed price is based on the Services described in a written proposal. Customer agrees that the nature of custom programming and other Services is such that there can be unexpected costs, minor changes in the specifications, and/or misinterpretations of specifications. Therefore, OPM reserves the right to unilaterally raise the price of a “fixed price” Custom Service by up to 10%, at its sole discretion. Changes resulting in a greater than 10% increase in price will require agreement by the parties prior to the changes being performed.
l. Video Services. OPM uses a third-party video production supplier to produce the videos described on the OPM Website.  Once payment for Customer’s selected video is made, OPM will notify the production company of the video order. The production company’s website system will send Customer an email with instructions on how to fill out the video description interview. If Customer has not received the email notification from the production company within 2 days after payment, Customer must notify OPM.
Within 48 hours after Customer completes the video interview, the production company will assign a producer who will be the Customer’s contact for all details of the video production.  Customer agrees to follow the instructions provided by the production company and work with the producer to schedule the video shoot and complete the video in a timely manner.

4.            WARRANTIES and LIMITATION OF LIABILITY: Customer understands and acknowledges that OPM MAKES ABSOLUTELY NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, with respect to the Services provided. Customer further agrees that OPM shall not be liable to Customer for any claims, damages, or loss of profit which may be suffered by Customer or any other entity, or for direct, indirect, consequential, actual, or punitive damages arising out of or in relation to the Services provided hereunder, including but not limited to losses or damages resulting from loss of data, non-deliveries, Service interruptions, and actions or inactions of sub-contractors or third party suppliers. Any and all data and information received by Customer for use in the Services to be provided by OPM is at Customer's sole and absolute risk. OPM specifically disclaims and denies any responsibility for the completeness, accuracy, or quality of such data or information. OPM makes no claim about the effectiveness of any of its Services as to whether or not Customer will see an increase in business based on the use of any or all of OPM’s Services.

5.            TRADEMARKS AND LICENSING
a. Customer shall not use the OPM name, trademarks, trade names, or logos in connection with the operation of Customer's business, except as may be provided for in this Agreement. Neither party shall use the other party's name, trademarks, or logos in either its own corporate or business name or in any fictitious name. Neither party nor its employees or agents shall knowingly remove or alter any trademark, trade name, copyright, or other proprietary notice, legend, or symbol from any of the other party's products or documentation or intellectual property.
b. Neither party shall take any action, or intentionally omit to take any action, that would jeopardize, limit, or interfere in any manner with the ownership of the other party in the other party's products, services, documentation, or intellectual property. Title to and ownership of all copies of any products, Services, software, documentation, and Internet Services developed by or for OPM or owned by OPM through the terms of this Agreement, whether in machine-readable or printed form, and including without limitation any derivative works, compilations, or collective works thereof, and all related technical know-how and all rights therein (including without limitation rights in patents, copyrights, and trade secrets applicable thereto), are and shall remain the exclusive property of OPM and/or its suppliers. Customer shall not take any action to jeopardize, limit, or interfere in any manner with OPM's ownership and rights therein.
c. Customer agrees not to disassemble, de-compile, or reverse-engineer any of OPM's software or any of OPM's source code.
d. Customer agrees not to copy or allow to be copied, except for backup purposes, any computer code provided to the Customer by OPM. Customer further agrees that any website, website component, copy writing, design work or programming provided by OPM may not be duplicated, sold, given, leased, or transferred in any way to any other party, except with the prior written permission of OPM.
e. Customer agrees not to allow access to the non-public portion of the OPM Website to anyone other than the Customer, Customer employees, or a Customer representative whose sole purpose for such access is to assist the Customer in the use of the Services. Customer agrees that showing the “inner workings” of the site to a current or potential competitor or for the purpose of re-creating features, designs, or concepts outside of the Services of OPM would damage OPM and that the Customer shall be responsible for such damages.
f. Customer agrees that, upon termination of this Agreement by either party, Customer will discontinue use of the designs and concepts created by OPM, except those websites created as a Custom Service. The Customer may continue to use any printed marketing materials already received or videos already produced and paid for while the Agreement was in force. Customer may not have an OPM design or concept re-created or produced by any other person or entity.
g. The customer agrees that the stock photographs provided with the website and used in some of the print materials are owned or managed by iStockPhoto.com or other third party supplier, and that the use of such stock photography is governed by iStockPhoto.com’s or other third party supplier’s terms of use. Any unauthorized use could result in civil damages and Customer agrees to defend, indemnify, and hold harmless OPM against any and all loss caused by the customer’s unauthorized use of said stock photographs.
h. Customer gives OPM the license to hold, copy, store, display on the Internet or forward to third-party suppliers and associates, digital and/or physical materials supplied to OPM in the course of and for the purpose of providing Services.

6.            PAYMENT POLICIES:
a. In consideration for OPM's promise to provide the Services ordered by Customer as described herein, Customer agrees to pay OPM the total of all applicable fees (1) posted on the OPM Website at the time the service is ordered , or (2) as specified in Section 3 above for Custom Services or Hourly Services, regardless of whether the total fees are paid in one payment or in multiple payments.  
b. Credit Card Usage – With some exceptions for Custom Services, the primary method of payment is credit card. Customer authorizes OPM to maintain its credit card information on OPM’s accounting system, Quickbooks Online, and to charge Customer’s card(s) of record whenever Customer places an order with OPM. All charges are made at the time of the order, in advance of the work being done. Fees for services that are being performed on a monthly or other repeating basis will be charged on or about the 1st day of the month or other period in which the service will be performed.
c. Termination or cancellation by OPM or by Customer shall not relieve Customer of the obligation to pay all Service fees accrued prior to such termination or cancellation.
d. If Customer pays by check, restrictive endorsements or other statements on checks accepted by OPM shall have no effect. Customer shall reimburse OPM for all administrative costs (including reasonable attorney fees) associated with collecting delinquent or dishonored payments, including but not limited to credit card chargebacks. Interest charges at the lower of 1.5% per month or the maximum rate allowed by law may be added to any past-due amounts.
e. In the event that Customer fails to pay for Services as agreed, OPM shall be entitled unilaterally to suspend its obligation to perform further Services under this Agreement, in whole or in part, and to discontinue all or some Services, at its option, until all overdue payments have been made.

7.            SERVICE PROJECTS
a. All set-up fees, deposits and other payments are non-refundable, in whole or in part.
b. The nature of some Services, including but not limited to website assistance, design work, video production, and print material production, requires that the Customer provide various materials, collaboration, reviews, and approvals in order for OPM to complete the Services. If, for a continuous period of 45 days, the Customer substantially fails to provide requested materials, collaboration, reviews or approvals, such failure to be determined at the sole discretion of OPM, the Service project will be considered “suspended.” The Customer agrees that such suspension interferes with OPM’s providing of the Services in a manner that causes extra time usage and costs to OPM. Customer further agrees that, for each 45-day period of suspension, OPM may, at its discretion, charge the Customer an additional fee equal to 10% of the total original cost of the Services.
c. Customer agrees that if a Service project remains “suspended” as described in “b” above for a period of 90 days, OPM may at its sole discretion consider the project abandoned by the Customer and OPM shall have no further obligation to perform under this Agreement. Customer further agrees that any fees or payments collected from the Customer by OPM for a project deemed abandoned are non-refundable and OPM has no obligation to provide the Customer with any work product that resulted from its performance of Services. Work product includes but is not limited to programming code, digital graphics, logos, artwork, data, designs, and documentation.
d. OPM will attempt to notify Customer of the suspension or abandonment via the email and/or phone number listed on Customer’s Account Information page. Customer’s failure to receive notice shall not affect OPM’s right to invoke suspension or deem a project abandoned.

8.            BREACH AND REVOCATION: In the event that Customer fails to pay in accordance with this agreement or at any time that OPM believes in good faith that the Service is being utilized for unlawful purposes by Customer, including but not limited to pornography and illegal trafficking, OPM may unilaterally and immediately discontinue such Service to Customer without liability.

9.            SECURITY INTEREST IN CUSTOMER'S DATA: Customer agrees that OPM shall have a security interest in Customer's data, and shall have the right in OPM's sole discretion to suspend, cancel, transfer, or modify Customer's account in the event that Customer fails to pay or otherwise breaches this Agreement. Customer understands and acknowledges that by placing Customer's Registered Name and Customer's information on OPM's servers, Customer has granted OPM a security interest in customer's data.

10.          DEFAULT; ACCELERATION; AND WAIVER OF NOTICE: Should Customer fail to pay Customer's bill as required by this Agreement, or should Customer otherwise breach this Agreement, OPM may declare Customer in default and require Customer to pay the entire debt immediately and without prior notice.

11.          THIRD PARTY SUPPLIERS AND SUB-CONTRACTORS: The creation and maintenance of the OPM Website and the provision of many OPM Services depends in part on third party suppliers and sub-contractors over which OPM has no direct control.
a. Customer agrees that the provisions of the Indemnification Section of this Agreement apply to failures to act, acts (whether willful or not), changes in service, and discontinuation of service on the part of any third party supplier or sub-contractor.

b. In situations in which Customer deals directly with a third party supplier, the third party supplier’s policies apply to the transaction and it is incumbent upon Customer to confirm all direct-pay terms and pricing with the third party supplier. If OPM provides descriptions and/or pricing for third party supplier services on the OPM Website, those descriptions and/or prices are subject to change without notice.
c. OPM provides links to third-party websites and resources it believes can benefit or be of service to Customer. Customer agrees that links are provided as a customer convenience and not as an endorsement by OPM of the third-party websites or resources, regardless of whether OPM receives a benefit from Customer’s use of the third-party supplier’s services.

12.          INDEMNIFICATION: Customer shall indemnify, hold harmless, and defend OPM from and against any and all loss, cost, expense, and damage on account of any and all manner of claims, demands, actions, suits, proceedings, judgments, costs, and expenses that may be initiated against OPM and OPM's owners, officers, directors, and employees for any Service provided to Customer by OPM, to include Web space content that violates (a) any copyright, trademark, or service mark, (b) any proprietary right of any person or entity, or (c) any state and/or federal laws or regulations, or that contains any defamatory matter. In any case or dispute in which the provision for Customer to indemnify, hold harmless, or defend OPM is found unenforceable in whole or in part by a court or arbitrator of competent jurisdiction, Customer agrees that OPM shall not be responsible to pay the Customer any amount greater than the Customer paid OPM for the Services and Term in question.

13.          CHANGES IN TERMS OF AGREEMENT: OPM reserves the right to make changes to the terms and conditions of this Agreement and to fees for Services at any time.  Any such change and the effective date thereof will be published on the OPM Website, but changes in fees shall become effective against a Customer only after the end of any period for which that Customer has prepaid. Use of the Service(s) by Customer following the effective date of such change(s) shall constitute acceptance by Customer of all such change(s). Customer is solely responsible for staying informed with respect to all changes to this Agreement and to fees published on-line as indicated above.

14.          ENTIRE AGREEMENT AND UNDERSTANDING: This instrument constitutes the entire Agreement between the parties, and represents the complete and entire understanding of the parties with respect to the subject matter of this Agreement.

15.          GOVERNING LAW: this Agreement is governed by Georgia law without regard to conflict of law provisions. Any controversy or claim arising out of or relating to this Agreement or the breach thereof shall be settled by arbitration. Any such arbitration will be governed by Georgia law and the proceedings shall be held in Cobb County, Georgia. The arbitrator's award shall be final and binding. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof and shall not be subject to appeal or further legal proceedings except to enforce the award of the arbitrator. Nothing herein shall prevent the parties from submitting their dispute to mediation prior to arbitration, should they so agree.

16.          SEVERABILITY: In the event that any term or provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be illegal, unenforceable, or invalid in whole or in part for any reason, the remaining provisions of this Agreement shall remain in full force and effect.

17.          INTERPRETATION: This Agreement shall be interpreted according to its plain meaning. Terms of art used in this agreement shall have those meanings generally accepted in the computer, software and internet Industries. The parties agree that, in the event any ambiguity shall be found in this Agreement, the interpretation thereof shall be based on the intent of the parties and this Agreement shall not be construed against OPM as the drafter.

18.          WRITTEN PROPOSALS: Some of the Services performed by OPM will be described in written proposals to Customer. If any portion of a written proposal is in conflict with this Agreement, Customer agrees that this Agreement supersedes that portion of the written proposal and that Customer shall be bound by the terms of this Agreement

IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, and in consideration of the covenants and agreements contained herein, do hereby execute this instrument, with each Customer signatory warranting that he or she has full legal authority to enter into this Agreement on behalf of him- or herself or of the entity that is the Customer party to the Agreement. By placing a checkmark in one of the Agreement forms on the OPM Website and submitting the form, Customer agrees to all the terms and conditions of this Agreement. Agreement to the terms hereof shall also be effected by acceptance of a written proposal, by placing a telephonic or email order with an OPM representative, by making payment on an OPM invoice, or by use of the OPM Website to produce a product.