PalGeek Inc. Website Design Contract Template
This Agreement for design services is between PalGeek Inc. (“the firm”), and Client Name (Client), for the performance of the services described in the proposal sent to Client on Proposal delivery date (“Proposal”). The parties therefore agree as follows:
Basic Terms and Conditions
As used herein and throughout this Agreement:
1.1 Agreement means the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule A, together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
1.2 Client Content means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
1.3 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. and Canadian Copyright Law.
1.4 Deliverables means the services and work product specified in the Proposal to be delivered by “the firm” to Client, in the form and media specified in the Proposal.
1.5 “the firm” Tools means all design tools developed and/or utilized by “the firm” in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
1.6 “Final Product” means all creative content developed or created by “the firm”, or commissioned by “the firm”, exclusively for the Project
and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all programming, layout design, software design, concept design, visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and “the firm”â€™s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
1.7 Final Deliverables means the final versions of Deliverables provided by “the firm” and accepted by Client.
1.8 Preliminary Works means all work including, but not limited to, software prototypes, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by “the firm” and which may or may not be shown and or delivered to Client for consideration but do not form part of the “Final Product”.
1.9 Project means the scope and purpose of the Clientâ€™s identified usage of the work product as described in the Proposal.
1.10 Services means all services and the work product to be provided to Client by “the firm” as described and otherwise further defined in
1.11 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.12 Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.
1.13 Third Party means all and any individual, group, corporation, government agency, non-profit agency,other than “the firm” or Client.
The terms of the Proposal shall be effective for 30 calendar days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
3. FEES AND CHARGES
3.1 Fees. In consideration of the Services to be performed by “the firm”, Client shall pay to “the firm” fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
3.2 Expenses. Client shall pay “the firm”â€™s expenses incurred in connection with this Agreement as follows: incidental and out-of- pocket expenses including but not limited to costs for stock photographs, 3rd party themes, 3rd party plugins, 3rd party software programs, 3rd party graphic design, and 3rd party typesetting costs plus “the firm”â€™s standard markup of 10%, with Clientâ€™s prior approval.
3.3 Additional Costs. The Project pricing includes “the firm”â€™s fee only. Any and all outside costs including, but not limited to, equipment rental, photographerâ€™s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.
3.4 Invoices. All invoices are payable within 10 business days of receipt. A monthly service charge of 1% [or the greatest amount allowed by state law] is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. “the firm” reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes.
4.1 General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at “the firm”â€™s standard hourly rate of U.S. Dollar $50 per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. “the firm” may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
4.2 Substantive Changes. If Client requests or instructs Changes that amount to a revision of at least 25% of the time required to produce the Deliverables, and or the value or scope of the Services, “the firm” shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by “the firm”.
4.3 Timing. “the firm” will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Clientâ€™s concerns, objections or corrections to “the firm”. The “the firm” shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that “the firm”â€™s ability to meet any and all schedules is entirely dependent upon Clientâ€™s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Clientâ€™s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or “the firm”â€™s obligations under this Agreement.
4.4 Testing and Acceptance. “the firm” will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within 20 business days of receipt of each Deliverable, shall notify “the firm”, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and “the firm” will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
5. CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) coordination of any decision-making with parties other than the “the firm”;
(b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and
(c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.
All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in “the firm”â€™s name in the form, size and location as incorporated by “the firm” in the Deliverables, or as otherwise directed by “the firm”. “the firm” retains the right to reproduce, publish and display the Deliverables in “the firm”â€™s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the otherâ€™s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other partyâ€™s website.
7. CONFIDENTIAL INFORMATION
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (â€œConfidential Informationâ€). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
8. RELATIONSHIP OF THE PARTIES
8.1 Independent Contractor. “the firm” is an independent contractor, not an employee of Client or any company affiliated with Client. “the firm” shall provide the Services under the general direction of Client, but “the firm” shall determine, in “the firm”â€™s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. “the firm” and the work product or Deliverables prepared by “the firm” shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
8.2 “the firm” Agents. “the firm” shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (â€œDesign Agentsâ€). Notwithstanding, “the firm” shall remain fully responsible for such Design Agentsâ€™ compliance with the various terms and conditions of this Agreement.
8.3 No Solicitation. During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any “the firm”, employee or Design Agent of “the firm”, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that “the firm” shall be entitled to an agency commission to be the greater of, either (a) 25 percent of said personâ€™s starting salary with Client, or (b) 25 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. “the firm”, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
8.4 No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by “the firm”, and “the firm” shall be entitled
to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by “the firm”.
9. WARRANTIES AND REPRESENTATIONS
9.1 By Client. Client represents, warrants and covenants to “the firm” that
(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
(b) to the best of Clientâ€™s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties,
(c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
(d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
9.2 By “the firm”
(a) “the firm” hereby represents, warrants and covenants to Client that “the firm” will provide the Services identified in the Agreement in
a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
(b) “the firm” further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of “the firm” and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by “the firm”, “the firm” shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for “the firm” to grant the intellectual property rights provided in this Agreement, and (iii) to the best of “the firm”â€™s knowledge, the “Final Product” provided by “the firm” and “the firm”â€™s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope
or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of “the firm” shall be void.
(c) Except for the express representations and warranties stated in this agreement, designer makes no warranties whatsoever, designer explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.
10.1 By Client. Client agrees to indemnify, save and hold harmless “the firm” from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Clientâ€™s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances “the firm” shall promptly notify Client in writing of any claim or suit;
(a) Client has sole control of the defense and all related settlement negotiations; and
(b) “the firm” provides Client with commercially reasonable assistance, information and authority necessary to perform Clientâ€™s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by “the firm” in providing such assistance.
10.2 By “the firm”. Subject to the terms, conditions, express representations and warranties provided in this Agreement, “the firm” agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with “the firm”â€™s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that
(a) Client promptly notifies “the firm” in writing of the claim;
(b) “the firm” shall have sole control of the defense and all related settlement negotiations; and
(c) Client shall provide “the firm” with the assistance, information and authority necessary to perform “the firm”â€™s obligations under this section. Notwithstanding the foregoing, “the firm” shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by “the firm”.
10.3 Limitation of Liability. The services and the work product of designer are sold “as is.” In all circumstances, the maximum liability of designer, its directors, officers, employees, design agents and affiliates (“”the firm” Parties”), to client for damages for any and all causes whatsoever, and client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of designer. In no event shall designer be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by designer, even if designer has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
11. TERM AND TERMINATION
11.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
11.2 This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:
(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 30 calendar days from receipt of written notice of such breach.
11.3 In the event of termination, “the firm” shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by “the firm” or “the firm”â€™s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
11.4 In the event of termination by Client and upon full payment of compensation as provided herein, “the firm” grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
11.5 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing partyâ€™s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
12.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that “the firm”â€™s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
12.2 Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt.
12.3 No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
12.4 Force Majeure. “the firm” shall not be deemed in breach of this Agreement if “the firm” is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of “the firm” or any local, state, federal, national or international law, governmental order or regulation or any other event beyond “the firm”â€™s control (collectively, â€œForce Majeure Eventâ€). Upon occurrence of any Force Majeure Event, “the firm” shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
12.5 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of Canada and the United States and the state of State without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneysâ€™ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of California. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that “the firm” will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that “the firm” shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
12.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
12.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
12.8 Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document, the Proposal, Schedule A below, and Name(s) of any other documents.
By their execution, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.
Schedule A: Intellectual Property Provisions
1. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART
1.1 Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to “the firm” a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with “the firm”â€™s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
1.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. “the firm” shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the “Final Product”. Under such circumstances “the firm” shall inform Client of any need to license, at Clientâ€™s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Clientâ€™s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless “the firm” from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Clientâ€™s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the “Final Product”.
1.3 Preliminary Works. “the firm” retains all rights in and to all Preliminary Works.
1.4 Original Artwork. “the firm” retains all right and title in and to any original artwork comprising “Final Product”, including all rights to display or sell such artwork.
1.5 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of- pocket expenses due, “the firm” assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by “the firm” for use by Client as a Trademark. “the firm” shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless “the firm” from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Clientâ€™s use and/or failure to obtain rights to use or use of the Trademark.
1.6 “the firm” Tools. All “the firm” Tools are and shall remain the exclusive property of “the firm”. “the firm” hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Clientâ€™s web hosting or internet service providers), perpetual, worldwide license to use the “the firm” Tools solely to the extent necessary with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any “the firm” Tools comprising any software or technology of “the firm”.
2. RIGHTS TO FINAL ART
2.A (1) (a) License for limited usage, no modification rights:
2.1 For Website Designs, Mobile Application Designs, and Hosting Accounts: Upon completion of the Services, and expressly subject to full payment of all fees, costs and out-of-pocket expenses due, “the firm” grants to Client the rights in the “Final Product” as set forth below. Any additional uses not identified herein requires the explicit consent of “the firm” and may require additional license and may require an additional fee. All other rights are expressly reserved by “the firm”. The rights granted to Client are for the usage of the “Final Product” in its original form only. Client may not distort, manipulate, reconfigure, mimic, animate, create derivative works or extract portions or in any other manner, alter the “Final Product”. The Client may not use the “Final Product” other than for it’s stated purpose as part of this agreement. Specifically the Client may not use the “Final Product” to contain, host, transmit, or in connection with any illicit activities, nudity, pornography, spam, alcohol, or any other illegal or immoral activities.
2.2 Client may modify content and layout of the “Final Product” without infringements on section 2.A(1)(a) 2.1 at Client own risk, and without holding “the firm” responsible or liable in anyway.
2.3 License Granted for:
Personal or Business Use on a single domain only.
Specify license duration
Specify inital press run, if applicable
With respect to such usage, Client shall have:
2.B Assignment Limitations:
“the firm” does not assign copyright or other intellectual property rights, in and to the “Final Product”. “the firm” retains full rights to reproduce and resell the “Final Product” to any other 3rd party and retains full copyright and ownership of all intellectual property rights in and to the “Final Product”.
Supplement 1: Website Design, Mobile Application Design and Hosting Terms and Conditions
1. WARRANTEE PERIOD
“the firm” shall grant the client a warrantee period of 12 (twelve) months within which any product defects identified by “the firm” or Client shall be corrected at the sole expense of “the firm”. Upon the expiry of the warranty period, Client shall be responsible for the cost of correcting product defects through hiring “the firm” or Third Party at Client full responsibility for cost and risk.
2. SUPPORT SERVICES
“the firm” shall provide reasonable support services to Client in the form of a support hotline, email and other means to report defects in the product. “the firm” shall be responsible to exercise all commercially reasonable efforts to correct minor defects or otherwise return the product into proper working order as long as Client is using “the firm” Hosting Services.
During the Maintenance Period, Client may request that “the firm” develop enhancements to the Deliverables, and “the firm” shall exercise commercially reasonable efforts to prioritize “the firm”â€™s resources to create such enhancements. The parties understand that preexisting obligations to third parties existing on the date of the request for enhancements may delay the immediate execution of any such requested enhancements. Such enhancements shall be provided on a time and materials basis at “the firm”â€™s then in effect price for such services.
3. ADDITIONAL WARRANTIES AND REPRESENTATIONS
3.1 Deficiencies. Subject to the representations and warranties of Client in connection with Client Content, “the firm” represents and warrants that the Final Deliverables will be free from Deficiencies. For the purposes of this Agreement, â€œDeficiencyâ€ shall mean a failure to comply with the specifications set forth in the Proposal in any material respect, but shall not include any problems caused by Client Content, modifications, alterations or changes made to Final Deliverables by Client or any third party after delivery by “the firm”, or the interaction of Final Deliverables with third party applications such as Web browsers other than those specified in the Proposal. The parties acknowledge that Clientâ€™s sole remedy and “the firm”â€™s sole liability for a breach of this Section is the obligation of “the firm” to correct any Deficiency identified within the Warranty Period. In the event that a Deficiency is caused by Third Party Materials provided or specified by “the firm”, “the firm”s sole obligation shall be to substitute alternative Third Party Materials.
3.2 “the firm” Tools. Subject to the representations and warranties of the Client in connection with the materials supplied by Client, “the firm” represents and warrants that, to the best of “the firm”â€™s knowledge, the “the firm” Tools do not knowingly infringe the rights of any third party, and use of same in connection with the Project will not knowingly violate the rights of any third parties except to the extent that such violations are caused by Client Content, or the modification of, or use of the Deliverables in combination with materials or equipment outside the scope of the applicable specifications, by Client or third parties.
4. COMPLIANCE WITH LAWS – Transfer of Technology
“the firm” shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating to the transfer of software and technology.
Client expressly acknowledges and agrees that the estimates provided in the Proposal, at any time during the project for implementation charges such as, including, but not limited to, fabrication or installation are for planning purposes only. Such estimates represent the best judgment of “the firm” or its consultants at the time of the Proposal, but shall not be considered a representation or guarantee that project bids or costs will not vary.
6. COMPLIANCE WITH LAWS – General
“the firm” shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the applicable rules and regulations such as the Americans with Disabilities Act (â€œADAâ€). However, “the firm” is not an expert and makes no representations or warranties in connection with compliance with such rules, codes or regulations. The compliance of the Final Deliverables with any such rule, codes or regulations shall be the responsibility of Client. “the firm” shall use commercially reasonable efforts to ensure the suitability and conformance of the Final Deliverables.
7. REFUND POLICY
7.1 Website Design and Mobile Design returns will be offered less a 10% transaction fee to cover fund transfer and other fees, and does not include the cost of any third party tools, content, components or software used in the final product. All refund requests must be received within 30 days of the final product delivery date to Client. After 30 days of product delivery to Client, no refunds will be offered.
7.2 Hosting package refunds cover a maximum of one (1) Calendar month of hosting effective the Calendar month that the cancellation request was formally delivered to “the firm”.
7.3 Website management plans refunds cover a maximum of one (1) Calendar month of website management services effective the month that the cancellation request was formally delivered to “the firm”.
7.4 Annual website management plans refunds cover only the unused period of the term of the plan, effective the date of the month that the cancellation request was formally delivered to “the firm”.
Unfortunately, “the firm” will not offer any refunds for Products and services that are terminated due to the violation of the terms and conditions of this contract.