Privacy and litigation annex

1. Part of the terms

This annex, the Terms of Service at lesterbranding.com/terms, and the Intake Form at lesterbranding.com/apply, including the submission record, are one indivisible agreement. Agency means the Studio, the New Jersey C-corporation identified by the mark above. Client means the person or business that submits an Intake Form or pays for a project. Intake Form means the form at lesterbranding.com/apply, also called the intake. Interactive Demo means the 24-hour interactive demo in section 4 of the Terms, also called the demo. Deliverables means the front-end code, the design assets for that project, and the placement of components the Client already uses, assigned after the balance is paid under section 5 of the Terms. These definitions are the same in the Terms, the privacy annex, and the Intake Form. Lester Branding™ is an unregistered common-law trademark of that corporation. This annex does not describe the mark as a registered mark or as a filed trade name. Where the Terms state a sum as liquidated damages, the parties acknowledge that actual damages resulting from that breach are difficult or impossible to ascertain, and that the sum represents a reasonable pre-estimate of operational and administrative harm and of legal recovery costs, and is expressly agreed as liquidated damages and not as a penalty.

Support mail goes to [email protected]. Written notices to the Studio may be mailed to 525 Route 73 North, Suite 104, Marlton, New Jersey 08053. This page does not publish a telephone number.

2. Materials sent with an intake

The Client submits materials through the intake at lesterbranding.com/apply, or afterward during the feasibility review. Logos, text, photographs, and other files so submitted are project materials. They constitute a trade secret only if the Studio and the Client have executed a separate nondisclosure agreement that so provides. Submission of the intake does not create that agreement.

The Client retains ownership of the logos, photographs, trademarks, and copy it supplies. The Studio shall not present those materials as the Studio’s own brand.

The Studio may use the submitted materials to determine whether it can perform the work and to prepare a concept or a demo, including by means of the design software the Studio uses. That internal use carries no royalty and no duty to account. The Studio may also use information that does not identify the Client for its own planning. Ownership of an unpaid demo’s layout, code, and structure is governed by the Terms.

3. Stopping a project

The Studio may decline an intake, terminate a project, or withdraw a preview if the Client engages in abusive, defamatory, or fraudulent conduct, or if the Client’s failure to cooperate materially prevents performance. Termination on that ground is not a breach by the Studio.

Upon such termination, the Studio shall refund sums received for work it has not earned. The $99 demo deposit is earned consideration for preparation of the demo and is excluded from that refund. The limitation of liability in the Terms continues to apply to every other claim.

Until title passes under section 5 of the Terms, a preview address, a staging address the Studio hosts, and DNS settings the Studio controls for that preview remain the Studio’s infrastructure. The Client’s own domain registration and registrar account remain the Client’s. Withdrawal of that infrastructure before title passes is the contractual lien stated in the Terms.

A DEMO OR A DELIVERABLE, ONCE THE STUDIO HAS BEGUN RENDERING IT, IS CUSTOM DIGITAL WORK. TO THE EXTENT A STATUTE PERMITS THE WAIVER, THE CLIENT WAIVES A COOLING-OFF PERIOD, A RIGHT OF WITHDRAWAL, AND A STATUTORY RIGHT TO CANCEL THAT WORK. A RIGHT THAT A STATUTE DOES NOT PERMIT A CONTRACT TO WAIVE IS UNAFFECTED. SUBMITTING THE INTAKE FORM DOES NOT START THIS WAIVER. THE FEASIBILITY REVIEW REMAINS FREE. THIS PARAGRAPH DOES NOT CANCEL A REFUND OF UNEARNED SUMS THAT THE TERMS EXPRESSLY REQUIRE.

4. Harassment

If the Client harasses the Studio, makes an extortionate demand, or continues a course of bad-faith communications after the Studio has requested that the Client stop, the Client shall pay the Studio’s reasonable costs of seeking a civil restraining order or emergency injunctive relief. A sustained course of harassment, or a complaint the Client knows to be false and submits to a payment provider, a hosting provider, or a registrar in order to disrupt the Studio, is governed by section 13 of the Terms. A truthful complaint is not a breach.

5. Other companies’ services

A delivered page may include a booking, payment, or scheduling link the Client already uses, including a link for Stripe, Square, Calendly, or Acuity, or a Google Map the Studio places. lesterbranding.com is served through hosting and network providers, including Vercel and Cloudflare. Each provider is governed by its own terms and privacy policy. The Studio does not open a Stripe, Square, Calendly, Acuity, Tally, or Typeform account for the Client. A failure caused by a change the Client or another person makes to delivered code, by the Client’s handling of a credential, or by an update, outage, or withdrawal of a provider named in this section, is outside the warranty in section 8 of the Terms. A layout or styling defect in the pages as the Studio delivered them remains under that warranty.

THE STUDIO HAS NO LIABILITY FOR A PROVIDER’S OUTAGE, WITHDRAWAL OF AN INTERFACE, ACCOUNT SUSPENSION, PAYMENT HOLD, OR DATA-PROCESSING ERROR. THIS SECTION DOES NOT LIMIT LIABILITY THAT NEW JERSEY LAW DOES NOT PERMIT A CONTRACT TO LIMIT. THE LIMITATION OF LIABILITY AND THE SOLE-REMEDY CLAUSE IN THE TERMS CONTINUE TO APPLY.

6. The submission record

The Intake Form displays, immediately above the control labeled Submit Request, a notice that activating that control is express agreement to the Terms and this annex, and an acknowledgement of the non-refundable $99 demo deposit. That control charges no sum. Selection of the agreement checkbox and activation of Submit Request, or use of an Interactive Demo hosted by the Studio, constitutes an executed agreement under the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001, and the New Jersey Uniform Electronic Transactions Act, N.J.S.A. 12A:12-1 et seq.

Upon submission, the Studio retains the form contents together with the network address, the time in UTC, the user-agent, and a hash of the terms version. That submission record is the only electronic log this sentence concerns. The terms-version hash and the UTC time identify, as between the parties, the version accepted for that submission. They are not conclusive against a court. A project already accepted remains on that version, as section 13 of the Terms states. The Studio does not log a view of a demo and does not sell the record. The parties agree that, as between them, the record is admissible evidence of consent. The Client will not object, as between the parties, to its authenticity on the ground that it is electronic. A court applies Federal Rule of Evidence 803(6) and Rule 902, or the applicable state rule. This agreement does not supply the certification Rule 902(11) or Rule 902(13) requires, and it does not bind the court.

7. Disputes

If a civil claim against the Studio is based on the Studio’s protected expression, the Studio may apply for an order to show cause under the New Jersey Uniform Public Expression Protection Act, N.J.S.A. 2A:53A-49 to -61. On that application, N.J.S.A. 2A:53A-52 provides that the court may stay other proceedings between the parties, with a presumption that the stay shall be granted. Dismissal with prejudice follows only if the burdens in N.J.S.A. 2A:53A-55 are met. Where the Act’s elements are met, the court dismisses the claim and may award costs, reasonable attorney’s fees, and litigation expenses. N.J.S.A. 2A:53A-50(c) states claims the Act does not cover, including certain claims arising out of the sale of services. Where the claimant is a nonresident, security for costs is governed by N.J.S.A. 2A:15-67, and the bond that statute states is $200. A court decides the application. Cyber-harassment by a person who has assented is governed by section 13 of the Terms and by N.J.S.A. 2C:33-4.1. A truthful account is not a breach. The Studio may seek malicious prosecution where its elements are met, compensatory damages, damages for reputational injury, and punitive damages where N.J.S.A. 2A:15-5.12 and N.J.S.A. 2A:15-5.14 permit them. This annex does not commence a proceeding of its own force. A person who has not assented is not liable for the liquidated damages stated in the Terms.

The Terms fix liquidated damages in the pre-agreed amount of $5,000 for each false, misleading, libelous, or defamatory statement, and $10,000 for each misuse of an unpaid demo or preliminary concept. Each amount applies per instance of the breach it describes. Statutory damages under the Copyright Act for the same act are an alternative to the $10,000, as section 11 of the Terms provides, and are not additional to it. The parties acknowledge that actual damages resulting from such breach are difficult or impossible to ascertain, and that each pre-agreed sum represents a reasonable pre-estimate of operational and administrative harm and of legal recovery costs, and is expressly agreed as liquidated damages and not as a penalty. The commencement of a claim, without more, is not such an instance.

A PARTY THAT DOES NOT PREVAIL ON A GROUNDLESS CLAIM AGAINST THE STUDIO SHALL PAY ALL OF THE STUDIO’S COURT FILING FEES, REASONABLE EXPERT-WITNESS FEES, AND REASONABLE ATTORNEYS’ FEES INCURRED IN THAT CLAIM.

EACH PARTY IRREVOCABLY WAIVES TRIAL BY JURY IN ANY DISPUTE ARISING OUT OF THIS AGREEMENT, IN ANY COURT. EVERY CLAIM SHALL BE BROUGHT ONLY IN AN INDIVIDUAL CAPACITY. THE CLIENT WAIVES ANY RIGHT TO COMMENCE, JOIN, OR PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION, A CONSOLIDATED ACTION, OR A REPRESENTATIVE PROCEEDING.

The Terms select the law of New Jersey. The Client may sue only in the state or federal courts located in New Jersey. The Studio may sue in those courts or in a court of competent jurisdiction where the Client resides or where the business named on the Intake Form operates. The Client waives forum non conveniens as to the court the Studio selects. Nothing in this annex prevents the Studio from asking a court for provisional or injunctive relief. The court decides whether to grant it. The jury waiver and the class-action waiver are set out above in conspicuous type and in the Terms. Sums payable to the Studio are payable in full, without set-off. The Terms cap the Studio’s aggregate liability, exclude indirect and punitive damages to the extent New Jersey law permits, treat a force majeure interruption as not a breach, and include reasonable pre-litigation costs and reasonable fees on appeal in fee-shifting. Those selections govern this annex. For a claim that the Studio has breached the agreement, the Client’s sole remedy is the monetary remedy stated in the Terms, and the Client waives equitable relief that would interfere with lesterbranding.com, the Studio’s showcases, or a hosted preview. The Studio’s right to seek an injunction, sanctions, or punitive damages is unaffected, and its remedies are cumulative. If a court of competent jurisdiction holds any provision of this annex invalid, unenforceable, or unconscionable, that provision shall be modified to the minimum extent necessary to make it valid and enforceable, or severed if modification is not available, and the remaining provisions shall continue in full force and effect. The ownership, liquidated-damages, non-defamation, fee-shifting, payment, jurisdiction, service, authority, and written-amendment provisions survive termination of the agreement. The English text of the Terms published at lesterbranding.com/terms controls. A translation is for convenience only. A chat message or an ordinary email does not amend this annex. Notices to the Studio shall be sent to [email protected] or by mail to 525 Route 73 North, Suite 104, Marlton, New Jersey 08053.