DesignByMoonlight Website Services, LLC DesignByMoonlight Website Services, LLC
Perfect Paint Preview

Perfect Paint Preview™ Service Agreement

Use of DesignByMoonlight Websites Services, LLC's Perfect Paint Preview™ Service is governed by the following Service Agreement. Your use of the Perfect Paint Preview™ Service constitutes acceptance of this agreement as follows.
AGREEMENT. This Service Agreement (the "Agreement") is by and between DesignByMoonlight Website Services, LLC, of 1190 SW Sunset Drive, Corvallis, Oregon 97333, ("DesignByMoonlight"), and the user of the Perfect Paint Preview™ service and website (the "User"). The User and DesignByMoonlight hereby agree as follows:

1. DESCRIPTION OF SERVICES; USER RESPONSIBILITY. Under this service agreement DesignByMoonlight will provide its standard service consisting of postprocessing a single image submitted by the User and installation into a web page designed to facilitate recoloration of a single set of the User's indicated color placement zones. Under this service agreement DesignByMoonlight may also provide optional special services including a digital cleaning process, password protection of web pages, collaboration on color placement zones, and presentation of paint manufacturer colors if available. If other services are provided in connection with the Perfect Paint Preview™ service, User agrees that this agreement governs those and all such services. Delivery of services is dependent on User submission of materials and information including graphic image files, and cannot be completed until User has provided those materials and the associated information. User agrees to provide all required materials and information within fourteen (14) days after User's order placement in the case of graphical image files, and within fourteen (14) days of User's graphical image file submission in the case of color placement zone indications or other required information. User acknowledges and agrees that submission of additional or changed graphic images files or color placement zone or other information will incur additional fees. DesignByMoonlight is an independent contractor of the User. Nothing in this agreement shall be construed so as to imply an employee/employer relationship. User agrees that DesignByMoonlight is not responsible for compliance with the Payment Card Industry Data Security Standard (PCI DSS), as in force at the time of this Agreement and as subsequently amended by the Payment Card Industry Security Standards Council (PCI SSC), and that all such responsibility resides solely with DesignByMoonlight's independent third-party credit card processing service providers. User is responsible to ensure that all User-provided graphics, files and content are either User’s own work and copyright or are used with permission of the copyright owner(s). User shall at its own expense defend, indemnify, and hold DesignByMoonlight, its officers, directors, agents, repre­sentatives, and employees, harmless against all claims, demands, damages, liabilities, penalties, and expenses (including, but not limited to, attor­ney fees), including, without limitation, those for copyright infringe­ment and for any fine assessed against either User or DesignByMoonlight for an alleged violation of PCI DSS, wherever and by whomever brought, arising out of, connected with, or resulting from DesignByMoonlight’s activities under or in furtherance of this Agreement or DesignByMoonlight’s use of User-supplied materials, files and content under this Agreement.
2. PAYMENT. Perfect Paint Preview™ services ordered by User will be performed upon receipt of all service fees. Payment shall be made by credit card through the Perfect Paint Preview™ third-party credit card portal attached to the Order Form, unless other arrangements have been made and agreed to by DesignByMoonlight and User in writing. User agrees that User is responsible for and will pay all costs of all ordered services. User shall pay all costs of collection, including without limitation, reasonable attorney fees, whether or not legal action is commenced. User agrees that DesignByMoonlight may, at its sole discretion, refrain from delivering work product until all associated service fees have been paid by User. User furthermore agrees and gives its permission that if any fee is not paid when due, or if any payment rendered by check, credit card or other transaction should fail to clear in DesignByMoonlight's account, or User's payment funds otherwise become unavailable to DesignByMoonlight, whether during or after completion of services, DesignByMoonlight may, at its sole discretion, reclaim and remove work product and final project files from User's account web pages and any other repository where DesignByMoonlight has delivered them until payment funds become available. In addition to any other right or remedy provided by law, if User fails to pay for the Services when due, DesignByMoonlight has the option to treat such failure to pay as a material breach of this Agreement, and may cancel this Agreement and/or seek legal remedies.
3. WARRANTIES. DesignByMoonlight warrants that its services shall be performed by personnel possessing competency consistent with applicable industry standards. No other representation, express or implied, and no warranty or guarantee are included or intended in this Agreement, or in any report, opinion, deliverable, work product, document or otherwise. Furthermore, no guarantee is made as to the efficacy or value of any services performed or software developed. THIS SECTION SETS FORTH THE ONLY WARRANTIES PROVIDED BY DESIGNBYMOONLIGHT CONCERNING THE SERVICES AND RELATED WORK PROD­UCT. THIS WARRANTY IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PAR­TICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR OTHERWISE. THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND OF MERCHANTABILITY ARE HEREBY EXPRESSLY DISCLAIMED. This proposal does not warrant or guarantee online commerce work of any kind, website updating or other management including Content Management System use, updat­ing or management, domain name acquisition, hosting or uploading/downloading services, work done or actions taken on behalf of User to support or interface with hosting providers or other third parties, con­sulting work on any subject, use or storage of User login, password or any other information, or vendor recom­mendations. Regardless of any fees charged or received, any such services or activities are pro­vided "AS IS", without warranty of any kind, express or implied, including but not limited to the warranties of mer­chantability, fitness for a particular purpose and non-infringement, and shall not be deemed to com­prise work product and are furthermore not guaranteed or certified as to quality, security or results. THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND OF MERCHANTABILITY ARE HEREBY EXPRESSLY DISCLAIMED. In no event shall DesignByMoonlight be liable for any claim, damages or other liability, whether in an action of contract, tort or otherwise, arising from, out of or in connection with, such services or activities. User assumes all risks associated with any performance of these activities by DesignByMoonlight in connection with this Proposal, and hereby defends, indemnifies, and holds DesignByMoonlight, its officers, directors, agents, representatives, and employees, harmless against all claims, demands, damages, liabilities, penalties, and expenses for any claim, damages or other liability, whether in an action of contract, tort or otherwise, arising from, out of or in connection with, such services or activi­ties.
4. LIABILITY. Limitation. The User agrees to limit DesignByMoonlight's liability to the User and any other third party for any damage on account of any error, omission or negligence, including but not lim­ited to the User's claims of contributions and indemnification related to third party claims arising out of services rendered by DesignByMoonlight, and for any losses, injury or damages to persons or properties or work performed arising out of or in connection with this Agreement and for any other claim, to a sum not to exceed the lesser of (i) five hundred dollars ($500.00) or (ii) the payment received by DesignByMoonlight for the particular service provided giving rise to the claim. Notwithstanding anything to the contrary in this Agreement, DesignByMoonlight shall not be liable for any special, indirect, incidental, exemplary, compen­satory, consequential, lost profits, or punitive damages and neither DesignByMoonlight nor any of its agents warrant that the work product functions will be uninterrupted or error-free. The entire risk as to the quality and performance of the work product is with the User. In no event will DesignByMoonlight be liable to the User or any third party for any damages, including, but not limited to, service interruptions caused by Acts of God, the Hosting Service or any circumstances beyond DesignByMoonlight's reasonable control, any lost profits, lost savings or other incidental, consequential, punitive, or special damages arising out of the operation of or inability to use the work product, failure of any service provider, of any telecommunications carrier, of the internet backbone, of any internet servers, User's com­puter or internet software, even if DesignByMoonlight has been advised of the possibility of such damages. The limitation of liability set forth herein is for any and all matters for which DesignByMoonlight may oth­erwise have liability
arising out of or in connection with this Agreement, whether the claim arises in contract, tort, statute, or otherwise.
5. TERM. This Agreement shall be effective as of the date of first User order of a DesignByMoonlight Perfect Paint Preview™ service, and will terminate automatically upon completion by DesignByMoonlight of the Services required by this Agreement. This Agreement may also be terminated at any time by mutual consent of the parties in writing, or by DesignByMoonlight at its option and without cause, upon delivery of 2 weeks' written notice.
6. WORK PRODUCT OWNERSHIP. Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively the "Work Product") developed in whole or in part by DesignBy­Moonlight in connection with the Services will be the exclusive property of DesignByMoonlight. Upon request, User will execute all documents necessary to confirm or perfect the exclusive ownership of De­signByMoonlight to the Work Product. User acknowledges and agrees that User is given only a limited nonexclusive license to all work product, including source code and still and video images, devel­oped under this Agreement, and further agrees that DesignByMoonlight is and remains the owner of all titles, rights, and interests in all source code and graphical images. DesignByMoonlight does not claim ownership to any information or intellectual property clearly belonging to User at the beginning of services.
7. DEFAULT. The occurrence of any of the following shall constitute a material default under this Agreement: a. The failure to make a required payment when due. b. The insolvency or bankruptcy of either party. c. The subjection of any of either party's property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
8. REMEDIES ON DEFAULT. In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate the Agreement by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 30 days from the effective date of such notice to cure the default(s). Unless waived by a party providing notice, the failure to cure the de­fault(s) within such time period shall result in the automatic termination of this Agreement. The User's exclusive remedy for any claim against DesignByMoonlight arising out of or relating to this Agreement will be for DesignByMoonlight, upon receipt of written notice, either (i) to use commercially reasonable efforts to cure, at its expense, the matter that gave rise to the claim for which DesignByMoonlight is at fault, or (ii) re­turn to the User the fees paid by the User to DesignByMoonlight for the particular service provided that gives rise to the claim, subject to the limitation contained in Section 4. The User agrees that it will not allege that this remedy fails its essential purpose.
9. FORCE MAJEURE. DesignByMoonlight shall not be responsible for delays or failures (including any delay by DesignByMoonlight to make progress in the execution of any Services) if such delay arises out of causes beyond its control. Such causes may include, but are not restricted to, acts of God or of the public enemy, fires, floods, epidemics, riots, quarantine restrictions, strikes, illness, freight embargoes, earth­quakes, electrical outages, computer or communications failures, and severe weather, and acts or omissions of subcontractors or third parties.
10. RESOLUTION OF CONFLICT. DesignByMoonlight and the User agree that any conflicts arising out of or relating to this Agreement shall be submitted to small-claims court if the claim falls within that jurisdiction, or resolved through arbitration if the claim falls outside the jurisdiction of small-claims court. All actions to resolve conflict shall proceed subject to all terms of this Agreement.
11. CONFIDENTIALITY. The User, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of the User, or divulge, dis­close, or communicate in any manner, any information that is proprietary to DesignByMoonlight. The User and its employees, agents, and representatives will protect such information and treat it as strictly confidential. This provision will continue to be effective after the termination of this Agreement.
12. BINDING EFFECT. This Agreement is binding on and inures to the benefit of the parties and their respective heirs, personal representatives and successors.
13. NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement, express or implied, is intended or may be construed to confer on any person, other than the parties to this Agreement, any right, remedy, or claim under or with respect to this Agreement.
14. CONSTRUCTION. The captions used in this Agreement are provided for convenience only and will not affect the meaning or interpretation of any provision of this Agreement. All references in this Agreement to “Section” or “Sections” without additional identification refer to the Section or Sections of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances re­quire. Whenever the words “include” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.”
15. TIME OF ESSENCE. Time is of the essence with respect to all dates and time periods set forth or referred to in this Agreement.
16. ATTORNEY FEES. If any arbitration, suit, or action is instituted to interpret or enforce the provisions of this Agreement, to rescind this Agreement, or otherwise with respect to the subject matter of this Agree­ment, the party prevailing on an issue will be entitled to recover with respect to such issue, in addition to costs, reasonable attorney fees incurred in the preparation, prosecution, or defense of such arbitration, suit, or action as determined by the arbitrator or trial court, and, if any appeal is taken from such decision, reasonable attorney fees as determined on appeal.
17. INJUNCTIVE AND OTHER EQUITABLE RELIEF. The parties agree that the remedy at law for any breach or threatened breach by a party may, by its nature, be inadequate, and that in addition to damages, the other parties will be entitled to a restraining order, temporary and permanent injunctive relief, specific performance, and other appropriate equitable relief, without showing or proving that any monetary damage has been sustained.
18. VENUE. Any action or proceeding seeking to enforce any provision of this Agreement or based on any right arising out of this Agreement must be brought against any of the parties in Benton County Circuit Court of the State of Oregon, and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to such venue.
19. NOTICE. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the addresses listed above or to such other address as one party may have furnished to the other in writing. The notice shall be deemed received when delivered or signed for, or on the third day after mailing if not signed for.
20. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties regarding the subject matter of this Agreement, and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties.
21. AMENDMENT. This Agreement may be modified or amended if the amendment is made in writing and signed by both parties.
22. SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
23. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
24. APPLICABLE LAW. This Agreement shall be governed by the laws of the State of Oregon.
Copyright © DesignByMoonlight Website Services.
All Rights Reserved.
Results may vary, and will depend on customer-supplied image quality, viewing monitor calibration and performance and other factors. This service provides approximate color information. Final color selection and color matches are the responsibility of the user. Terms and conditions apply. See Terms of Use, Service Agreement, Privacy Policy and other information for details. Features, specifications and availability are subject to change without notice. Reference herein to any specific commercial products, process, or service by trade name, trademark, manufacturer, or otherwise, does not necessarily constitute or imply its endorsement, recommendation, or favoring by DesignByMoonlight Website Services, LLC. All trademarks and trademarked terms on this website are the property of their respective owners.
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DesignByMoonlight Website Services, LLC DesignByMoonlight Website Services, LLC
1190 SW Sunset Dr, Corvallis, OR 97333
Website & Graphic Design, Video Services
Hand-coding excellence since 2005