PO Box 283, Wappingers Falls, NY 12590
support@utterflymultimedia.com
Updated on February 20th, 2025: the length of Utterfly's tolerance for failure to pay and the length of the Client's notice for termination has been adjusted.
Welcome to Utterfly Multimedia!
The following Terms of Service ("Terms of Service") contain information about Utterfly's services and policies and what legal rights Utterfly and its Clients have and what obligations that they owe to each other. The provisions outlined in these Terms of Service are intended to describe our business relationship and define the terms and conditions that will govern it. These Terms of Service cover your use of Utterfly's products and services (defined in these Terms of Service). Our Privacy Policy explains what information Utterfly collects and how it's used and shared in providing our Services.
PLEASE TAKE THE TIME TO READ THESE TERMS. When you sign the Order Form to engage Utterfly and use its Services, you are agreeing to these Terms of Service and the Privacy Policy. Utterfly has tried to make these Terms of Service simple, but if you have questions or suggestions, please Contact Us.
The Order Form entered into between Utterfly Multimedia LLC ("Utterfly") and client specified therein (the "Client")(collectively referred to as the "Parties"), together with these Terms of Service, constitute the "Agreement."
The Effective Date of the Order Form shall constitute the "Effective Date" of the Agreement.
Utterfly shall provide Client with the services listed in the Order Form (the "Services") in accordance with the specifications and timeline set forth therein and in any applicable services documents exchanged between the Parties and incorporated herein by reference, which may, from time to time, be executed by the Parties under the Agreement. For purposes of the Agreement, Services shall include, but are not limited to, designs, layouts, programming, computer code, algorithms, databases, scripts, informational content, writings, articles, custom or stock photography, illustrations, artwork and other media created by Utterfly, its suppliers or provided by the Client for the Services hereunder to create a website(s) for Client, and modifications thereto ("Website"), as well as digital marketing, social media management and any other products or services agreed to under the Agreement.
Any Services not listed on the Order Form or outside the scope of Services, shall not be included in the Services, but may be added or modified in an additional Order Form to be approved in writing by both Parties. Each such additional Order Form is hereby incorporated into the Agreement by this reference.
Utterfly will, from time to time, update the Services and service provisions in accordance with current industry practices to provide the best service for Client.
Utterfly reserves the right in its sole and exclusive discretion to determine if additional Web Programming, Consulting, and/or Content Creation Services are necessary to accommodate requests for changes by Client.
Utterfly makes no guarantees with respect to the effectiveness of any of the Services, whether or not the Services are described in this section.
Utterfly provides design, development and ongoing digital marketing Services for its clients. The Services vary. Some of the Services are outlined below in general, non-specific terms. Utterfly reserves the right, in its sole discretion, to modify the Services to provide what Utterfly believes to be the best service for the Client.
All services provided herein are to be performed by Utterfly in accordance with commonly accepted standards and practices of the Internet Web Services Industry. Limitations of scope and design for the content are defined below. Utterfly will use website technologies that that can be accessed and viewed using most popular Internet web browsers. Services and tools are provided “as-is” in English, translation services are not included.
Utterfly uses enterprise class servers to provide Client websites with optimal uptime, file management, database backup, and load speed. Utterfly manages the servers and client websites by installing security updates, plugin updates, and WordPress core updates as they are made available and proven to be stable. Utterfly also provides Client editor access to the back end of the website's content management system (CMS) enabling client to make changes to their website as an author. If Client has an hour of updates included in its Services, the hour includes simple content edits, swapping of images within the content area (images to be provided by Client), updating links, and embedding videos. All other changes are billed at our hourly rate then in effect.
If the Client requires an E-Commerce enabled website, Utterfly will recommend that the Client obtain a secure certificate for online transactions. Client understands that if it does not obtain its own secure certificate it is possible that design capabilities on the website may be limited. If the Client's website requires the ability to accept credit cards as payment for products offered on the website, the Client understands that it may need to obtain a merchant account. Client acknowledges that any charges necessary to secure a merchant account for the Client are not covered in this agreement. If the Client anticipates its website operating with a high volume of sales transactions it is possible that a "real-time" credit card processing system will be necessary in addition to a merchant account. Client acknowledges and agrees that disputes between, claims of, and losses or damages to Client and third parties arising from online payment interactions are not the responsibility of Utterfly, and Client shall indemnify, defend and hold harmless Utterfly from all losses, damages, proceedings, claims and actions arising from such interactions. Furthermore, Client shall comply with all laws in processing end user payments, including but not limited to data privacy regulations, usury laws and implied warranties (if any).
When Utterfly creates or publishes content in written, video, graphic, audio, or other forms to promote Client, limitations will apply. Basic, Advanced, Unlimited tier tactical SEO and content are defined by Utterfly and subject to change without prior notice as these may evolve in time to keep up with industry demand. When used referring to content creation:
“Basic”, “Business” or similar means up to 300 words, 1 image, a 10-second video composition (multiple clips), or a 30-second video interview (without additional clips). Unless otherwise stated, new Websites will include 10 (ten) pages of this tier in the initial design & build phase contingent on a 12-month minimum commitment.
“Advanced”, “Professional” or similar means up to 600 words, 2 images, a 30-second video composition (multiple clips), or a 60-second video interview (without additional clips). Unless otherwise stated, new Websites will include 10 (ten) pages of this tier in the initial design & build phase contingent on a 12-month minimum commitment.
“Ultimate”, “Enterprise” or similar means up to 1200 words, 3 images, a 60-second video composition (multiple clips), or a 90-second video interview (without additional clips). Unless otherwise stated, new Websites will include 10 (ten) pages of this tier in the initial design & build phase contingent on a 12-month minimum commitment.
Social media publications are published on all platforms included in the Client’s agreement. Social media publications are created and published in a single image format will count as 1 publication toward your quota. The extent of style and type is limited as follows: 1 image post = 1 publication used of quota, 1 animated GIF post = 1.5 publications used of quota, 1 custom animated video = 3 publications used of quota. Social media scheduling and management platforms are also provided by Utterfly for Client to schedule their own social media publications on all platforms and features included in the provided platform. Client will be given 1 login to access this platform.
An in-house email marketing platform is used by Utterfly to send newsletters to up to 5000 active, opted-in subscribers of Client. Utterfly will connect 1 domain to send as and up to 3 emails to send as the Client’s business. Client is responsible for complying with local laws and wishes of subscribers.
Within the schedule of Client’s plan, Utterfly will provide consulting services to Client to discuss different strategies and tactics recommended for the success of the business. Consulting beyond what is stipulated in the plan or agreement will be billed at an hourly rate.
Performance reports are generated by Utterfly on a quarterly basis for Client to see an overview of key information such as traffic, leads generated from paid ads campaigns, or other data. No reports will be generated beyond the scope of the agreement. Utterfly will continually monitor and provide strategic advice in the quarterly reports based on changes to the market or industry. Utterfly will provide Client with access to these reports.
By providing a cell or other phone number(s), Client expressly consents to receive communications from Utterfly, its agents (including any collection agencies), or business associates at any numbers provided or that are later acquired, to be used to contact Client by live agent, voice mail, text message, using an autodialer or other computer-assisted technology, pre-recorded message, or by any other form of electronic communication for any purpose, including scheduling, notifications, confirmations, reminders, instructions, accounting, billing, assignment of benefits, and/or collections. Client understands that depending on the terms of its phone plan, it could be charged for these calls or text messages. Client agrees to provide new numbers if its numbers change. Providing these numbers is not a condition of receiving services. Client consents to be contacted by regular mail or e-mail regarding any matter related to its account by Utterfly or any entity to which Utterfly assigns Client’s account including any collection agency. Client also consents to the use of any updated or additional contact information that Client may provide by Utterfly or any entity to which Utterfly assigns Client’s account.
Client certifies that that they are legally able to make decisions about the use and management of the business’ website and it’s representation on the Internet via other online platforms of public and private nature. Client hereby agrees to designate Utterfly as the sole authorized agent responsible for the access to the digital platform(s) aforementioned and it’s content, likeness, and intended use during the duration of this agreement. This exclusivity of access granted by Client is accepted by both parties as a non-transferrable responsibility during the duration of this agreement. As the sole responsible agent with the authority for granting levels of access to third parties, Utterfly reserves the right to judiciously grant such accesses in the best interests of the services outlined in this agreement.
Client shall provide Utterfly all materials necessary for Utterfly's performance of its Services, including but not limited to text copy, images, informational content, writings, artwork, images, domain access, usernames, passwords, photography or other media or material submitted to Utterfly or uploaded to the Website by Client or its appointed agents or representatives (collectively, the "Client Content") for the Website or any other products or services being developed by Utterfly hereunder, in a form satisfactory to Utterfly. Utterfly's ability to perform its obligations under the Agreement may be dependent on the Client fulfilling its obligations. Utterfly shall not be liable for any costs, charges or losses sustained by the Client arising directly from any failure of the Client to fulfill its obligations under the Agreement.
Client asserts that they have authorization and right to utilize all materials that Client sends to and/or requests Utterfly to use or publish. We assume no liability for legal action due to the contents of Client’s website or online platforms. Any changes by Client’s request or court order will be completed in a timely fashion and billed at an additional hourly rate.
Client is required to retain copies of all Client Content sent to Utterfly for publication to ensure against accidental loss or damage. Utterfly will not provide storage for Client Content nor will Utterfly be held liable for loss or damage of data or materials you send to us.
All copy provided by the Client shall be in electronic format, in length and subject matter appropriate for its intended use. Where photographs, illustrations or other visual materials are provided by the Client, they shall be of professional quality and in a form suitable for reproduction without further preparation or alteration. The Client shall pay all fees and expenses required to bring nonconforming materials up to such standards.
Within five (5) business days following receipt of any deliverables, the Client shall provide Utterfly with either (a) written approval and acceptance of such deliverable (which will not be unreasonably withheld), or (b) a written list of reasonable modification guidelines (“Revision”) that will bring the deliverables into compliance with the description of Services provided by Utterfly. Each deliverable hereunder will be deemed accepted by the Client if, within five (5) business days of its delivery to the Client, Utterfly does not receive the foregoing written approval or a written list of reasonable modifications. Client’s deemed acceptance in this way authorizes Utterfly to determine whether to discard, delay, or deliver the material without affecting the current services. This applies to all website programming, design, marketing, and other services. Client is fully responsible and liable for all actions performed and material published on its behalf.
Client will be given a limit of the number of revisions that are included. A Revision is understood and agreed upon by both parties to comprise the following: Utterfly will deliver the materials or plan needing approval; Client reviews the material within the expressed deadline; then Client will send the exact content to be changed (if any) to Utterfly; finally, Client will apply the changes and repeat the process up to the final Revision round. Once the included rounds are exhausted, Client will decide to either purchase additional Revisions at the price determined by Utterfly, forfeit the content from being published with no changes to future services of the plan, or approve the content for publishing “as-it-is”.
Revisions are limited in scope as follows: for written long-form content, edits up to 300 words, and 2 photography assets. For video compositions, edits replacing up to 10 seconds of video footage, 10 seconds of audio, and up to 140 characters for text content in videos. For graphic designs, edits replacing up to 30% of the artboard.
To avoid miscommunication, the Client shall appoint one (1) representative with full authority to provide or maintain any necessary information and approvals that may be required by Utterfly (the "Client Representative"). The Client Representative shall be responsible for coordination and review of the Utterfly Services and notifying Utterfly of Client's instructions, change orders and approvals. The Signature, e-mail, or oral approval of the Client Representative shall be final and binding on Client. If the Client or any authorized person alters the scope of work or requires additional Services after the Client Representative has approved any work element related to the Services, the Client shall pay all associated fees and expenses arising from such changes and additional Services and/or reimburse Utterfly for any costs or expenses it incurs related thereto, including those imposed by third parties. The Client Representative's approval of any site pages, materials, copy or other work produced by Utterfly during the commission of the Services, or any cost estimate, will constitute Utterfly's authority to purchase, publish, make contracts necessary to the performance of Services and otherwise to do any other act or thing which Utterfly considers reasonable to do in order to carry out its obligations under the Agreement.
The monthly fees set forth on the Order Form shall be payable on the Effective Date for each subsequent month of the Term. The Monthly Fee is non-refundable. The Monthly Fee is subject to change at the election of Utterfly for each successive Term beyond the Initial Term. The Monthly Fee shall not increase more than 10% at each Renewal Term without the prior authorization of the Client. Any changes in fees for the Services will be effective only at the end of any period for which Client has prepaid. Utilization of the Utterfly Services by Client following the Effective Date of such change shall constitute acceptance by Client of such change.
If Client requests Services outside the scope of or in addition to the Client's contracted Services identified in the Order Form, Client will be billed in 30-minute increments at our hourly rate as may then be in effect.
ACH is our preferred method of payment. There is never an additional charge for paying by ACH. If you wish to pay by credit card, there is a 5% credit card processing fee. Declined credit cards incur a $100 fee for each attempt.
The Client shall pay Utterfly the entire balance on an invoice (or the invoiced portions thereof) immediately upon receipt of the invoice.
Late payments shall accrue interest at the rate of 1.5% per month (18% per annum). Utterfly shall be entitled to recover all of its costs of collection of any amount outstanding hereunder, including without limitation, the fees of its attorneys and/or collections agencies.
All rights of the Client herein are conditioned on Utterfly's receipt of full payment. Utterfly may withhold delivery of materials, or suspend or cease performance of Services (including taking down a Website), until payment in full of all amounts due are received. Utterfly shall not be liable for any damages, losses or liabilities that may arise because of Utterfly's suspension, cessation, or resumption of Services and Website and/or withholding of materials due to Client's non-payment. If Utterfly suspends providing Services due to non-payment, there will be a $500 reinstatement fee for the resumption of Services and Website.
The Term of the Agreement shall be monthly unless otherwise specified in the period of time identified on the Order Form (the "Term"). The initial Term and any subsequent renewal Term may sometimes be referred to collectively as the "Term".
The Initial Term of the Agreement shall be the period of time identified on the Order Form and shall commence on the Effective Date (the "Initial Term").
The Term of the Agreement shall automatically renew at the completion of the Initial Term for the same length of time as the Initial Term (the "Renewal Term"). All subsequent Renewal Terms shall automatically renew for the same length of time as the immediately preceding Renewal Term.
Notwithstanding the foregoing, Utterfly shall have the right to terminate the Agreement or any Services for any reason upon giving thirty (30) days prior written notice to Client. Upon termination by Utterfly not based on Client's fault, Utterfly will refund to Client the prorated balance of any fees paid for Services not yet performed, excluding non-cancellable and/or out-of-pocket expenses.
Utterfly may have the right to immediately terminate for cause the Agreement or any specific Services upon notice if (i) Client fails to pay any sums due to Utterfly within thirty (30) days after the due date thereof; (b) Client breaches any of its covenants, representations, warranties or obligations, or any other material provision of the Agreement; (ii) Client becomes insolvent or is bankrupt; (iii) Client undergoes a substantial change in management or control; or (iv) Client exceeds its authorized access to the Services or Website, including but not limited to attempting to decompile, download or reverse engineer the Website's source code or HTML. If Utterfly terminates the Agreement pursuant to this paragraph, all fees or deposits due and owing to Utterfly by Client under this Agreement, including any amounts for Services not yet billed but due under this Agreement for the duration of the Term, will be immediately billed to Client and shall be payable upon receipt.
The Agreement shall continue indefinitely unless terminated by Client in a written notice to Utterfly not later than thirty (30) days prior to the end of the Initial Term or any Renewal Term. Client may terminate the Agreement early, but will be responsible for all fees due and owing to Utterfly under this Agreement, including any amounts for Services not yet billed but due under this Agreement for the duration of the Term. Upon receipt of Client's early termination notice, Utterfly will issue a final bill to Client which shall be payable upon receipt.
Upon liquidating all outstanding balances within the notice period, Client authorizes Utterfly to export and remove any public website HTML files from Utterfly’s server(s) containing any Client Content such as text, images, video, etc., and deliver the files in .ZIP format within 30 days. This agreement expressly forbids any type of migration or transfer of website databases or applications, third-party licenses, proprietary code, server configurations, etc. Upon receipt of the HTML files, Client acknowledges they are solely responsible for adapting, programming, and deploying any HTML files on a new server of their choice.
If applicable, primary domain control will be transferred to Client’s preferred domain registrar. For all domains that need transfering, Client will pay a transfer fee of $45 each. Utterfly will also make sure you retain access to all public platforms of your business (like Facebook, Yelp, etc.).
Previously licensed published content on the website and social media (premium stock videos, photos, illustration art, audio files) are free to remain, but Client may not reuse or repost in future posts since the license is granted only to Utterfly per the use designated initially. To reuse or repurpose without being subject to legal action, Client will have to search for and purchase the specific license from an independent merchant.
Unless otherwise stated in the Agreement or agreed by the Parties in writing, Utterfly's contracts with suppliers in respect of the Services shall be made in accordance with suppliers' standard terms or such other terms as Utterfly is able to negotiate with the relevant supplier. Utterfly shall act as principal in all such contracts, but all rights and liabilities as between the Client and the Utterfly shall correspond to those between Utterfly and the various suppliers under such conditions, including any service levels and any rights of amendment, omission and cancellation.
Utterfly reserves the right to enter into third-party agreements for products or services that it determines are necessary to give effect to Utterfly's Services. Utterfly further reserves the right to share these Terms of Service with third-party providers.
Utterfly and the Client shall mutually respect and maintain each other's Confidential Information in confidence and shall use it only to perform their respective obligations hereunder. Confidential information is that which relates to the Client's or Utterfly's research, development, trade secrets or business affairs and includes but is not limited to, in the case of Utterfly's confidential information, its computer programs, source code, algorithms and inventions (collectively, "Confidential Information"). For the avoidance of doubt, Confidential Information does not include information which is public knowledge, was in the recipient's possession before receipt of it or is independently developed by the recipient. Notwithstanding the foregoing, Utterfly does not intend to grant access to its Confidential Information for any reason. In the event Client receives Utterfly's Confidential Information, Client shall immediately destroy it or return it to Utterfly.
Neither Party shall solicit the other's employees, independent contractors or consultants or engage them in any work independent of the Parties' relationship under the Agreement during the term of the Agreement and for eighteen (18) months thereafter.
See the Privacy Policy for additional information concerning the use of any Utterfly Services.
Any conflict between this provision in the Terms of Service and the Privacy Policy, will be resolved with the Terms of Service prevailing.
As between the Parties, Utterfly shall own and retain all intellectual property rights (e.g. copyright, trademark, patent, and trade secrets) to work that it creates and commissions pertaining to the Services provided hereunder including but not limited to algorithms, architectures, source and object code, frameworks, images, videos, content and libraries, and all derivatives, enhancements and modifications thereto (collectively, the "Proprietary Technology"). Client Content is not Proprietary Technology. Utterfly reserves copyrights and may display all aspects of creative work, including sketches, work-in-progress designs, success metrics, and the completed project in our portfolio and in media online (including the services provided) and offline.
Client shall own and retain all rights in and to all Client Content, unless such material is already in Utterfly's possession when it is provided to Utterfly, in which case it will be deemed Utterfly's property under Section 9.1.
Subject to payment of all amounts owed to Utterfly, Utterfly hereby assigns to Client all rights, title and interest in all original work produced by Utterfly, its employees, or its subcontractors for the Website, other than Client Content and Proprietary Technology (the "Work Product"). To the extent the Work Product is not transferable to Client, and subject to Utterfly's receiving full payment for the Services it provides to Client hereunder, Utterfly hereby grants to Client a nonexclusive, royalty-free, worldwide license to use, reproduce and display the Website and all intellectual property incorporated therein for the term and duration of the Agreement. Upon Termination of the Agreement, Client shall be solely responsible for clearing and licensing all imagery, video and other content provided to Client by Utterfly.
Client hereby grants to Utterfly, and any third-party provider necessary to the Services, a nonexclusive, royalty-free, perpetual, worldwide, sublicensable (through multiple tiers of sublicensees) license to use, reproduce, prepare derivative works of, display and distribute Client Content (as defined herein) in connection with Client Strategies and Utterfly's products and Services subject to the special protections described in Section 10.
Client represents that it owns or has obtained rights and permissions necessary to grant all relevant rights and permissions for use of Client Content herein. For those materials that Client does not own, Client shall obtain from its associates, employees, customers, patients and any other individual whose photographs, illustrations, or likelihoods (each, an "Image"), in whole person or in select body parts, a written release or license allowing for use of such person's Image to be used on the Website and for advertising and commercial purposes. Client further warrants that all Client Content may be used pursuant to the Agreement, including without limitation on the Internet and for commercial purposes, without violating any laws and without violating or infringing any rights of any third parties. Client represents and warrants that use of Client Content will not infringe on third party intellectual property rights nor violate applicable law.
If Client receives notice that content on the Website, whether Client Content or otherwise, is unlawful or infringing, Client shall promptly provide Utterfly notice identifying the allegedly unlawful or infringing content. Upon notification, Utterfly may, in its discretion, suspend hosting of the Website, remove the allegedly unlawful or infringing content from the Website, or completely remove the Website from its hosting servers. If Client fails to expeditiously notify Utterfly of content that Client knows to be allegedly infringing or unlawful, Client shall indemnify, defend, and hold harmless Utterfly from claims, proceedings, losses, and damages arising from such content. If Utterfly has reason to believe that Client has repeatedly infringed on the intellectual property rights (including copyright and trademark rights) of another person or entity, Utterfly reserves the right to terminate the Agreement and the Services therewith immediately upon notice.
The DMCA provides recourse to those who believe that material appearing on the Internet infringes their rights under U.S. copyright law. Client shall comply with the Digital Millennium Copyright Act (the "DMCA") to the extent it is applicable. If Client receives a DMCA takedown notice from a third party alleging copyright infringement, Client shall promptly forward that notice to Utterfly, and Utterfly may or may not, in its discretion subject to applicable law, remove the content or access to it.
8.7.1. Submission of DMCA Counter-Notice
If Client believes in good faith that a notice of copyright infringement has been wrongly issued, the DMCA permits Utterfly and/or Client to send a counter-notice to the notifying party. Notices and counter-notices must meet current statutory requirements imposed by the DMCA; see https://www.copyright.gov for details. Notices and counter-notices under the DMCA, as well as all other communications addressed to Utterfly relating to the Agreement, should be sent Utterfly at its headquarters address listed on its website. Utterfly strongly recommends that you consult your legal advisor before filing a notice or counter-notice. Also, please be aware that penalties may apply for false claims under the DMCA.
If Client, or its customer, client, patient, associate, employee or agent, or a third-party beneficiary to this Agreement shall be required under any state or federal law by the very nature of their industry, occupation, service or product, and/or if any information used or shared pursuant to this Agreement qualifies for special state or federal law protections, the following terms and conditions shall apply and incorporated into the Agreement and these Terms of Service:
The following terms used in this section shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required by Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.
9.1.1. Business Associate
"Business Associate" shall generally have the same meaning as the term "business associate" at 45 CFR 160.103. The business associate under this Section shall mean Utterfly.
9.1.2. Covered Entity
"Covered Entity" shall generally have the same meaning as the term "covered entity" at 45 CFR 160.103. The covered entity under this Section shall mean Client.
9.1.3. Data Controller
"Data Controller" shall also refer to and mean Client. A data controller has control over the purpose and manner of which personal data, personally identifiable information, and any protected health information (PHI) (as those terms are defined under applicable law) is collected, stored and analyzed.
9.1.4. Data Processor
"Data Processor" shall also refer to and mean Utterfly. A data processor collects, stores, or analyzes personally identifiable information at the direction of the data controller.
9.1.5. HIPAA Rules
"HIPAA Rules" shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.
Utterfly agrees to be bound by the following provisions:
9.2.1. Not to use or disclose protected health information other than as permitted or required by the Agreement or as required by law;
9.2.2. To use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to prevent use or disclosure of protected health information other than as provided for by this Section;
9.2.3. To report to covered entity any use or disclosure of protected health information not provided for by this Section of which it becomes aware, including breaches of unsecured protected health information as required at 45 CFR 164.410, and any security incident of which it becomes aware;
9.2.4. In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, to ensure that any subcontractors that create, receive, maintain, or transmit protected health information on behalf of the Utterfly agree to the same restrictions, conditions, and requirements that apply to the Utterfly with respect to such information;
9.2.5. To make available protected health information in a designated record set to the covered entity as necessary to satisfy covered entity's obligations under 45 CFR 164.524;
9.2.6. To make any amendment(s) to protected health information in a designated record set as directed or agreed to by the covered entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy covered entity's obligations under 45 CFR 164.526;
9.2.7. To maintain and make available the information required to provide an accounting of disclosures to the Covered Entity as necessary to satisfy covered entity's obligations under 45 CFR 164.528;
9.2.8. To the extent the Utterfly is to carry out one or more of covered entity's obligation(s) under Subpart E of 45 CFR Part 164, to comply with the requirements of Subpart E that apply to the covered entity in the performance of such obligation(s); and
9.2.9. To make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.
Client as the Covered Entity agrees to be bound by the following provisions:
9.3.1. Not to furnish, deliver, or disclose protected health information to Utterfly other than as expressly provided in this Section, or as permitted under applicable law, and for no other reasons;
9.3.2. Not to furnish, deliver, or disclose the identity, name, address, phone number, email address or any other contact information (collectively, the "Identity Information") of any patient of covered entity or of any other person for any reason, other than as expressly provided in this Section, or as permitted under applicable law, or pursuant to an informed written consent signed by any such patient or person;
9.3.3. Not to furnish, deliver, or disclose any photographs, images, videos, or likeness, in any format, whether analog, physical, digital, or otherwise (collectively, the "Images") of any patients of covered entity or any other person for any reason other than as expressly provided in this Section, or as permitted under applicable law, or pursuant to an informed written consent signed by any such patient or person;
9.3.4. To indemnify, defend, and hold Utterfly harmless, to the maximum extent permitted by law, from any and all damages, fines, amounts paid in settlement, judgments, investigations, government and administration proceedings, claims, lawsuit, proceedings or any other liabilities (including the reasonable fees of attorneys, experts, and other professionals) with respect to or arising out of, (i) the breach of this Section, or (ii) the retention, possession, use, or disclosure by covered entity or Utterfly of protected health information, Identity Information or Images on the Internet, to a webhost, to another covered entity, to another Utterfly, to a subcontractor, or to any other party in any manner or via any medium whatsoever, or whether transmitted by encrypted or unencrypted e-mail, Internet file transfer or other web or Internet protocol, text or SMS messaging, or any other mode of telecommunications.
9.3.5. The indemnity, hold harmless, and defense obligations of covered entity that are specified in the immediately preceding paragraph (d) shall apply and be binding upon all of the following (each, an "affiliate"): the present, former, and future shareholders, officers, directors, members, managers, and agents of covered entity, and parties under common control or affiliated with covered entity or any of the foregoing persons or entities.
9.3.6. Covered entity is, and shall be, responsible and liable to Utterfly for any actions taken, or omissions made, by any affiliate with respect to the obligations, liabilities, rights, or remedies of covered entity or any affiliate, whether occurring under this Section, under the Terms and Conditions, or otherwise.
9.3.7. Each affiliate is, and shall be, jointly and severally liable to Utterfly, for any actions taken, or omissions made, by covered entity or another affiliate with respect to the obligations, liabilities, rights, or remedies of covered entity or any affiliate, whether occurring under this Section, under the Terms and Conditions, or otherwise.
Client as the Covered Entity agrees to be bound by the following provisions:
9.4.1. Utterfly may only use or disclose protected health information as provided in this Section, the Terms and Conditions, and as permitted or required by applicable Laws.
9.4.2. Utterfly is authorized in its sole discretion to use protected health information to de-identify the information in accordance with 45 CFR 164.5 14(a)-(c).
9.4.3. Utterfly may use or disclose protected health information as required by law.
9.4.4. Utterfly agrees to make uses and disclosures and requests for protected health information consistent with covered entity's minimum necessary policies and procedures.
9.4.5. Utterfly may not use or disclose protected health information in a manner that would violate Subpart E of 45 CFR Part 164 if done by covered entity.
9.5.1. Covered entity shall notify Utterfly of any limitation(s) in the notice of privacy practices of covered entity under 45 CFR 164.520, to the extent that such limitation may affect Utterfly's use or disclosure of protected health information, Identity Information, or Images.
9.5.2. Covered entity shall notify Utterfly of any changes in, or revocation of, the permission by an individual to use or disclose his or her protected health information, Identity Information, or Images, to the extent that such changes may affect Utterfly's use or disclosure of protected health information, Identity Information, or Images.
9.5.3. Covered entity shall notify Utterfly of any restriction on the use or disclosure of protected health information that covered entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect Utterfly's use or disclosure of protected health information.
9.5.4. Covered entity shall post a notice of privacy practices on its Website that is compliant with the HIPAA Rules, and shall, whenever it updates or modifies the notice of privacy practices that it uses in its general business, post such updated or modified notice of privacy practices on the covered entity's Website.
9.5.5. The notice of privacy practices shall set forth that covered entity has the right to transmit protected health information, Identity Information, and Images via unencrypted email or other unsecure means.
Client (or the Covered Entity) shall not request Utterfly to use or disclose protected health information in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by covered entity.
Client acknowledges and agrees that, in the context of the Agreement, Client shall be responsible for compliance with applicable law pertaining to data controllers. Notwithstanding anything herein to the contrary, Utterfly shall not be liable for, and Client agrees to indemnify and hold harmless Utterfly and its affiliates and intended third-party beneficiaries from and against any and all claims, investigations, proceedings, demands, liabilities, costs, losses and expenses whatsoever (including, without limitation, reasonable attorneys' fees) arising from collection, storage, sharing or usage of personal data or placement of cookies.
Client acknowledges and agrees that, in the context of the Agreement, Client shall be responsible for compliance with applicable law pertaining to data controllers. Notwithstanding anything herein to the contrary, Utterfly shall not be liable for, and Client agrees to indemnify and hold harmless Utterfly and its affiliates and intended third-party beneficiaries from and against any and all claims, investigations, proceedings, demands, liabilities, costs, losses and expenses whatsoever (including, without limitation, reasonable attorneys' fees) arising from collection, storage, sharing or usage of personal data or placement of cookies.
9.8.1. Either Party authorizes termination of this Agreement by the other Party, if such Party determines that the other Party has violated a material term contained within Section 10 and the other Party has not cured the breach or ended the violation (after written notice) within thirty (30) days of receiving such notification.
9.8.2. Obligations of Business Associate Upon Termination. Upon termination of this Agreement, Utterfly, with respect to protected health information received from Client or the covered entity, or created, maintained, or received by Utterfly on behalf of Client or the covered entity, shall:
9.8.2.1. Retain only that protected health information which is necessary for Utterfly to continue its proper management and administration or to carry out its legal responsibilities;
9.8.2.2. Return to covered entity (or, if agreed to by covered entity, destroy) the remaining protected health information that the business associate still maintains in any form;
9.8.2.3. Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information to prevent use or disclosure of the protected health information, other than as provided for in this Section, for as long as business associate retains the protected health information;
9.8.2.4. Not use or disclose the protected health information retained by business associate other than for the purposes for which such protected health information was retained and subject to the same conditions which applied prior to termination; and
9.8.2.5. Return to Client or the covered entity (or, if agreed to by Client or the covered entity, destroy) the protected health information retained by Utterfly when it is no longer needed by Utterfly for its proper management and administration or to carry out its legal responsibilities.
The obligations of Utterfly under this Section shall survive the termination of the Agreement.
Client shall indemnify, defend (at its own cost and expense) and hold harmless Utterfly and any of its owners, employees, licensees, partners, officers, directors, shareholders, agents, affiliates, successors, assigns, representatives, third-party providers and publishers, and intended third-party beneficiaries from and against all charges, claims, liabilities, damages, judgments, losses and expenses of any kind or nature (including reasonable legal fees and costs) which in any way relate to: (a) the Client Content; (b) Client's patients and related protected health information (PHI) or other third-party customers of Client; (c) a lack of permission related to or other misuse of an Image, other patient information or Client Content in general; (d) the breach or alleged breach of Client's representations, warranties, obligations or agreements herein or in any other terms and conditions agreed to in writing by the Parties; (e) any negligent or reckless or willful misconduct; and (f) any action or omission of Client. Client shall further indemnify, defend and hold harmless Utterfly and any third-party provider or publisher from any and all liability related to the products and services provided to Client in relation to Utterfly's Services, to the fullest extent under applicable law, however, for the avoidance of doubt, the foregoing does not limit any express warranties made to Utterfly or Client under any third-party agreement. At Utterfly's request, Client shall provide a defense for Utterfly in any such proceeding, actual, threatened, or potential and shall consult with Utterfly in conducting such defense (or, at Utterfly's election, reimburse Utterfly for reasonable fees and costs of Utterfly's own counsel).
Utterfly shall not be liable for any indirect, third-party, incidental, special, consequential, exemplary or punitive damages arising out of the Agreement or relating to the Services provided herein, including but not limited to losses or damages resulting from the loss of data as a result of delays, non-deliveries or service interruptions. Utterfly shall not be held responsible for delays and nonperformance (and damages and losses arising therefrom) caused by activities or factors beyond its reasonable control, including delays and nonperformance caused by viruses, denial of service attacks, other acts or omissions by third parties, Internet service providers, the Client or its contractors, strikes, lockouts, work slowdowns or stoppages, accidents, fires, acts of God, terrorism, failure by the Client to timely furnish information or approve or disapprove work, or faulty performance by the Client or others, including third-party contractors hired by Utterfly or by Client. Utterfly's maximum liability under the Agreement shall not exceed the lesser of (a) the total fees received by it during the six (6) months preceding the event giving rise to Utterfly's liability, or (b) Client's actual damages actually caused by Utterfly.
Client agrees to waive any right to bring or participate in a class action litigation against Utterfly and any of its third-party providers, which are intended third-party beneficiaries herein, with respect to the Services or products of Utterfly or its third-party providers and publishers.
THE SERVICES AND ALL OTHER PRODUCTS AND SERVICES PROVIDED OR MADE AVAILABLE HEREUNDER ARE PROVIDED BY UTTERFLY, ITS THIRD-PARTY PROVIDERS AND PUBLISHERS ON AN "AS IS", "AS AVAILABLE", AND "WITH ALL FAULTS, DEFECTS AND ERRORS" BASIS. CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT CLIENT'S USE OF THE SERVICES IS AT CLIENT'S SOLE RISK. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, UTTERFLY, ITS THIRD-PARTY PROVIDERS AND PUBLISHERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE OR USAGE OF TRADE. UTTERFLY, ITS THIRD-PARTY PROVIDERS AND PUBLISHERS DO NOT WARRANT THAT THE SERVICES OR CLIENT'S WEBSITE IS ERROR-FREE, FREE OF HARMFUL COMPONENTS, OR THAT IT WILL BE ACCESSIBLE ON A PERMANENT BASIS OR WITHOUT INTERRUPTION. UTTERFLY, ITS THIRD-PARTY PROVIDERS AND PUBLISHERS DO NOT WARRANT THAT THE APPEARANCE OF THE WEBSITE OR ANY CLIENT STRATEGIES WILL MEET CLIENT'S REQUIREMENTS OR THAT THE WEBSITE, SERVICES OR CLIENT STRATEGIES WILL PERFORM EXACTLY AS DESCRIBED IN ANY OF UTTERFLY’S WEBSITES OR PROMOTIONAL MATERIALS. THE USE OF ANY DATA OR INFORMATION RECEIVED BY CLIENT OR ANY OTHER INDIVIDUAL FROM THE UTILIZATION OF THE SERVICES PROVIDED BY UTTERFLY, ITS THIRD-PARTY PROVIDERS AND PUBLISHERS IS AT CLIENT'S SOLE AND ABSOLUTE RISK. UTTERFLY, ITS THIRD-PARTY PROVIDERS AND PUBLISHERS EXPRESSLY DISCLAIMS AND DENIES ANY RESPONSIBILITY FOR THE COMPLETENESS, ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH THE SERVICES.
Headings are for convenience only and do not constitute terms of the Agreement.
The Parties agree that the relationship between them is that of independent contractors only. No agency, partnership or other relationship (other than a relationship of independent contractors) between the Parties shall be deemed to exist.
Utterfly reserves the right to unilaterally amend, change or modify the terms of the Agreement, specifically including these Terms of Service and the Privacy Policy, and any such changes shall take effect within forty-five (45) days of notice to Client. Any modifications to pricing shall be subject to Section 3 herein. Utilization of the Utterfly Services by Client following the Effective Date of such change shall constitute acceptance by Client of such change.
Any and all notices required or permitted hereunder shall be sent as provided for in this Section.
12.4.1. Notice to the Client shall be delivered (1) through the Client's account on https://utterflymultimedia.com; (2) through the Client Reporting dashboard on https://my.utterflymultimedia.com; (3) by email to the Client Representative(s) at the email address(es) identified on the Client's account on https://my.utterflymultimedia.com; or (4) by certified mail, return receipt requested, postage prepaid to Client's mailing address registered on the Client's account on https://my.utterflymultimedia.com. Notice shall be deemed properly given to Client the earlier of the actual date of delivery or three (3) days from the date notice is sent or posted.
12.4.2. Notice to Utterfly shall be delivered (1) via email to support@utterflymultimedia.com and (2) by certified mail, return receipt requested, postage prepaid to Utterfly's headquarters, the address of which shall be identified on https://utterflymultimedia.com/tos. Notice shall be deemed properly given to Utterfly three (3) days from the date the certified mail envelope is posted.
The Agreement shall, in all respects, be governed by the laws of the State of New York. Each party agrees that any Claim arising out of or relating to the Agreement shall be brought in the state courts located in Dutchess County, New York. Each party consents to the exclusive jurisdiction of such courts (and the appropriate state appellate courts) in any such action or proceeding and waives any objection to venue laid therein. If Utterfly is the prevailing party in any legal action, Client shall pay all costs of suit and fees incurred by Utterfly related to the dispute, including, without limitation, reasonable attorneys' fees and expert witness fees; interest on damages shall by at the rate of eighteen percent (18%) per annum.
The Agreement embodies the Parties' entire understanding and agreement with respect to the subject matter hereof and supersedes any and all prior and contemporaneous discussions and communications (written and oral) regarding such subject matter. There will be no force or effect to any different terms of any related purchase order or similar form even if signed by the Parties after the date hereof, unless it expressly references the Agreement and is signed by both Parties.
In the event any of the provisions of the Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the other provisions of the Agreement shall remain in full force and effect. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation applicable to the Parties and to the Agreement, contrary to which the Parties have no legal right to contract, the latter shall prevail; but the provision of the Agreement which is affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law.
Utterfly may assign the Agreement, or any of Utterfly's interests under the Agreement: (i) to any person which is a party to a merger or consolidation of/with Utterfly; (ii) to any Affiliate of Utterfly; or (iii) to any Person acquiring substantially all of the assets of Utterfly or the unit of Utterfly for which Client is rendering services, and, provided that any such assignee assumes Utterfly's obligations under the Agreement, Utterfly shall then be relieved of any and all liability under the Agreement. Client shall not have the right to assign the Agreement or delegate any duties imposed upon Client under the Agreement without the written consent of Utterfly, and any such purported assignment or delegation shall be null and void and of no effect.
No waiver by any Party hereto of a breach of any provision of the Agreement shall constitute a waiver of any preceding or succeeding breach of the same or any other provision hereof unless such waiver is in writing.
The Parties acknowledge and agree that Utterfly's third-party providers and service vendors are intended third-party beneficiaries of the Agreement.
In the event of the termination of the Agreement, any obligation of a party, which must, by its nature survive such termination in order to be given full effect, shall survive such termination.