Terms & ConditionsAUTHORIZATION: The above-named Client (hereinafter referred to as “Client”) is engaging Kent D Schlieve, (hereinafter referred to as “ KDS FX Design or KDSFX “), as an independent contractor for the specific purpose of designing a World Wide Web site (hereinafter referred to as “Web Design Project”) to be published on the Client’s account on an Internet Service Provider (ISP)/Web Presence Provider (WPP) computer, hereinafter refer to as “Hosting Service”, or provided on diskette at the Client’s option. The Client hereby authorizes KDS FX Design to access this account, and authorizes the Hosting Service to provide KDS FX Design, with “full access” to the Client’s account, and any other programs needed for this Web Design Project that are included as part of the Client’s service agreement/level. The Client also authorizes KDS FX Design to submit the completed Web Design Project to major Web Search Engines. These conditions of KDS FX Design (KDSFX) apply to the exclusion of any terms or conditions of the Customer. No variation of these conditions will be binding on KDSFX or form part of any contract unless expressly accepted by KDSFX in writing.
ESTIMATES: KDSFX will usually attempt to estimate a price. Where possible a full brief, preferably in writing should be supplied by the Customer to KDSFX before such an estimate can be prepared.
COST VARIATIONS: All prices quoted are, in the absence of specific written agreement to the contrary, estimated only. KDSFX quotations for design work are based upon projected working hours at the current studio rate, plus materials, and are subject to amendment on or after acceptance to meet any rise or fall in such rates or material costs. Any increased charges or costs arising from alterations or additions to contractual specifications or to work previously approved, may be charged to the Customer. Other expenditure such as material sub-contracted on behalf of the Customer will be quoted separately.
CONSEQUENTIAL LOSS: KDSFX shall not be liable for any loss or damage, whether direct or consequential, which is or may be occasioned to the Customer or to any person with whom he is in contractual relations which is in any way attributable to any delay in performance or completion of any contract between KDSFX and the Customer, however that delay arises.
CUSTOMERS PROPERTY: Customers property when supplied to KDSFX will be held at the risk of the Customer, although all reasonable care will be taken to prevent loss or damage. If 3rd parties are sub contracted by KDSFX and are to use this artwork to complete their requested task, then all artwork remains the property of the KDSFX customer and may not be copied or used in any manner by the 3rd party for their own works outside of KDSFX. Once the job has been completed all copies of the artwork either hard or soft are to be returned to KDSFX or be completely deleted from their systems or servers.
INITIAL WORK: Work produced, whether experimentally or otherwise, at Customer request will be charged for unless otherwise agreed in writing. If the Customer wishes to terminate an order at this stage, a termination invoice will be drawn up charging for time and materials up to this point.
PROOFS: Final proofs will be presented by KDSFX to the Customer for approval prior to publishing. When approval is given by the Customer in the form of a signature, email approval or verbal approval, he is assumed by KDSFX to have studied all aspects of the material presented and to be satisfied with them, noting any exceptions in writing.
IN THE EVENT THAT: (a) the customer becomes apparently insolvent ( within the meaning of the Bankruptcy)or makes any voluntary arrangement with its creditors, or (b) a petition is presented or a resolution is passed to wind up the customer (other than for the purposes of reconstruction or amalgamation as a solvent company ), or (c) a receiver is appointed over the whole or any part of the assets of the Customer or an administration order is made in respect of the Customer, or (d) the Customer shall otherwise cease trading, or (e) any diligence, distress, execution or other process is levied or enforced against any property of the customer, then in any such event KDSFX shall ( without prejudice to any other right or remedy available to it ) be entitled to cancel any contract between itself and the Customer or suspend any further deliveries of goods or the provision of any further services under any such contract without any liability to the Customer and if any goods or services have been delivered or supplied but not paid for, the price of such goods and services shall become immediately due and payable, notwithstanding any previous agreement or arrangement to the contrary.
DEVELOPMENT: This Web Design Project will be developed using various commercial software products and proofed by hand.
• Browser Compatibility - Designing a website to fully work in multiple browsers (and browser versions) can require considerable, extra effort. It could also involve creating multiple versions of code/pages. KDS FX Design represents and warrants that the website we design for you will work in:
• Microsoft Internet Explorer versions 7 and up (PC Platform)
• Firefox (Mac & PC Platforms)
While KDS FX Design will make reasonable efforts to design a fully functional website, KDS FX Design warrantee does not cover AOL, text-based browsers or requested special effects that we have advised you against.
ASSIGNMENT OF WEB DESIGN PROJECT: KDS FX Design reserves the right, and you hereby agree, to assign subcontractors to this Web Design Project to insure that the terms of this agreement are met as well as on-time completion.
SUB CONTRACTING: KDSFX may employ any person, company or firm as a sub-contractor for the production or provision of any printed or other item in accordance with any original design or other work produced by KDSFX for the Customer.
COPYRIGHTS AND TRADEMARKS . The Client unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to KDS FX Design for inclusion in the Web Design Project are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify and defend KDS FX Design and its subcontractors from any liability (including attorney’s fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the Client. The Customer shall not submit for use by KDSFX anything whose use would constitute an unauthorized dealing with copyright material. In the event of any breach of this condition resulting in such an unauthorised dealing, the Customer shall remain liable to pay all sums due to KDSFX under the relevant contract and shall further indemnify KDSFX against any loss, costs or expenses attributable to such unauthorized dealing. All copyright and other intellectual property rights in any work created, commissioned or otherwise acquired by KDSFX in implementation of any contract between KDSFX and the Customer shall remain with KDSFX until full payment has been received. For the purposes of these conditions, WORK means and includes any artistic, literary or dramatic work within the meaning of the (amended) Copyright.
WEBSITE MAINTENANCE: This agreement allows for minor website maintenance to pages over a 1 month period, up to an average of one half hour per regular web page, including updating links and making minor changes to a sentence or paragraph. It does not include replacing nearly all the text from a page with new text, major page reconstruction, new pages, guestbooks, discussion webs, navigation structure changes, attempted updates by Client, repairs or Web Design Projects delivered to Client via diskette. The period of 1 month begins on the date the Client’s web design site is available to be published to Client’s hosting service.
COMPLETION DATE: KDS FX Design and the Client must work together to complete the Web Design Project in a timely manner. We agree to work expeditiously to complete the Web Design Project no later than the package option time-frame, after the Client has submitted all necessary materials. If the Client does not supply KDS FX Design with complete text and graphics content for this Web Design Project within 30 days of the effective date of this agreement, the entire deposit amount of the agreement shall be retained by KDS FX Design as liquidated damages and the contract shall become null and void, at KDS FX Design option, unless the Web Design Project is cancelled in writing by the Client prior to 30 days of the effective date of the agreement.
PROJECT DELIVERY: The final website design project will be published to the Client’s hosting service upon receipt of final payment or delivered via diskette upon the receipt of full payment. The Client understands that KDS FX Design does not provide any hosting services in connection with this Web Design Project. Hosting services require a separate contract with the hosting service of the Client’s choice. The Client agrees to select a hosting service, which allows KDS FX Design full access to the Client’s account via FTP. The Client will be solely responsible for any and all hosting service charges.
•Diskette (CD): The Client assumes all responsibility for the use and functionality of the Web Design Project.
ELECTRONIC COMMERCE LAWS: The Client agrees that the Client is solely responsible for complying with any laws, taxes, and tariffs applicable in any way to the Web Design Project or any other services contemplated herein, and will hold harmless, protect, and defend KDS FX Design and its subcontractors from any claim, suit, penalty, tax, fine, penalty, or tariff arising from the Client’s exercise of Internet electronic commerce and/or any failure to comply with any such laws, taxes, and tariffs.
WEB DESIGN PROJECT COPYRIGHT:. KDS FX Design will own copyright to the finished Web Design Project until final payment is received. Once final payment has been received by KDS FX Design, (and any additional charges incurred have been paid), the Client will receive full rights to the Web Design Project. Rights to photos, graphics, source code, work-up files, and computer programs are specifically not transferred to the Client, and remain the property of their respective owners. KDS FX Design and its subcontractors retain the right to display graphics and other Web design elements as examples of their work in their respective portfolios. All Web Design Projects will contain a copyright/legal statement with a link to the KDS FX Design Web Site.
PAYMENTS: Payments must be made promptly based on the terms of this Website Design Project. KDS FX Design reserves the right to remove any Web Design Project from viewing on the Internet until final payment is made. In case collection proves necessary, the Client agrees to pay all fees (including all attorney’s fees and court costs) incurred by that process. This agreement becomes effective only when signed by KDS FX Design. Regardless of the place of signing of this agreement, the Client agrees that for purposes of venue, this agreement was entered into in Berks County, Pennsylvania, and any dispute will be litigated or arbitrated in Berks County, Pennsylvania, and the Client hereby consents to the personal jurisdiction of the Pennsylvania State Courts. Furthermore, the Client waives any right to or claim of sovereign immunity. Adding of Meta Tags (Description and Keywords) and the submission of the Web Design Project to Web search engines and updating occur only after the full final payment is made. All payments will be made in U.S. Dollars. All payments need to be made out to: Kent Schlieve
PAYMENT SCHEDULE: Payment for services provided hereby shall be made in accordance with the conditions contained in this contract and Attachment A, attached hereto and made a part of this agreement hereof. Notwithstanding any prices listed in literature or on Web pages, the Client and KDS FX Design agree that the services described in this contract, and Attachment A, shall be completed for See Attachment A The Client agrees to pay to KDS FX Design an initial, non-refundable deposit of $550.00 (normally, 50% of the estimated total cost) upon execution of this agreement. Final payment is due prior to publication and/or delivery of the Website Design Project. All amounts must be in U.S. Dollars. All payments need to be made out to: Kent Schlieve
NON-PAYMENT: Failure by the Customer to meet financial obligations may result in legal proceedings by KDSFX under which circumstances ALL legal costs and other administrative expenses will be recoverable in full by KDSFX
LEGAL NOTICE: Notwithstanding anything to the contrary contained in this contract, neither KDS FX Design nor any of its employees or agents, warrant that the functions contained in the Web Design Project will be uninterrupted or error-free. The entire risk as to the quality and performance of the Web Design Project is with the Client. In no event will KDS FX Design be liable to the Client or any third party for any damages, loss of services including, but not limited to, hosting service providers, domain names, domain name registrant services, ecommerce features including but not limited to: SSL certificate(s), paypal, payment gateway(s), merchant account(s), service interruptions caused by Acts of God, the Hosting Service, hacking, hack attacks or any other circumstances beyond our reasonable control, any lost profits, lost savings or other incidental, consequential, punitive, or special damages arising out of the operation of or inability to operate this Web Design Project, failure of any service provider, of any telecommunications carrier, of the internet backbone, of any internet servers, your or your site visitor’s computer or internet software, even if KDS FX Design has been advised of the possibility of such damages. Development of CMS (Content Management Systems) such as joomla do not include free upgrades or updates to that software. Development will be completed with the current stable release of that software at the time of development of the clients site.
Current CMS version release number will be listed on attachment A.
SEARCH ENGINES: A specific position in the search engine results is not guaranteed. We will make every attempt to obtain a Top Ranking for your keyword phrase’s, but are not liable for circumstances beyond our control. Such as change in policies of the search engines involved, spontaneous drops our other anomalies out of our control.
We will not index sites that promote hate or discrimination based on race, religion, sex, age, sexual orientation or any other type of grouping. We reserve the right to refuse to promote any site we deem as unacceptable for any reason, without explanation. For purposes of this agreement, KDSFX shall have no responsibility under this agreement during periods when the search engine is not available either for searching or submissions. KDSFX will not be responsible for any further damages of any kind.
The code that we actually use to index your page with the search engines is proprietary even though it is based on your original pages. The information (all codes, HTML, Java all work that has been manually done) may not be sold, used, or transferred another website without our written permission.
We will not ‘spamdex’ your pages into unrelated keyword categories. That means that if your page is the “cheap car insurance” page, we will not index it into the “ford trucks” keyword search page. This kind of indexing is harmful to useful operation of all search engines.
CUSTOMER RESPONSIBILITIES:
Obligations
The customer agrees to provide KDS FX Design with reasonable access to all necessary personnel to answer any questions about any problems reported by the customer regarding the website.
When requested and necessary, the customer shall provide KDS FX Design in writing a reasonable description of the suspected error and the following information
• The name and version number of the operating systems and web browser.
• A detailed description of the problem.
KDS FX Design will promptly investigate the facts and circumstances of the error and provide an explanation or areasonable workaround solution as is appropriate for the circumstance.
Primary Contacts
The customer shall appoint one (1) individual within customer’s organization to serve as primary contact between the customer and KDS FX Design and to receive support through KDS FX Design’s telephone support center. All of the customer’s support enquiries shall be initiated through these contacts.
SUPPORT PACKAGE:
Telephone Support
KDS FX Design shall provide support via phone and facsimile. Technical support is available Monday through Friday 8 a.m.- 5 p.m. EST.
Email Support
KDS FX Design will provide customer with email support Monday through Friday 8 a.m. - 5 p.m. EST.
On site Support
KDS FX Design will make on site support and professional services available to the customer for additional fees. Prices for extended support will be provided to the customer upon request.
ERROR CORRECTION:
Error Identification
Upon identification of any programming error, the customer shall notify KDS FX Design of such error and shall provide KDS FX Design with a problem report and enough information to reproduce the error. KDS FX Design shall use its reasonable efforts to respond to problem reports. A bug report sheet will be provided and must be fully completed. Critical errors will need to be marked “Critical Error”.
KDS FX Design shall not be responsible for correcting any errors not attributable to KDS FX Design. Errors attributable to KDS FX Design shall be those that are reproducible by KDS FX Design on unmodified software.
Causes Not Attributable To KDS FX Design
Customer shall reimburse KDS FX Design at KDS FX Design’s then-current time and material rates for all work of KDS FX Design spent investigating an error or malfunction that KDS FX Design reasonably determines to have been caused by a modification to the Software that was neither made nor authorized by KDS FX Design or that KDS FX Design determines to have been caused by another software process or another software product(s).
EXCLUSIONS:
KDS FX Design is not required to provide any Maintenance Services directly related to problems attributable to: (i) customer’s failure to implement all Updates to the Software; (ii) any alterations of or additions to the Software performed by parties other than KDS FX Design or parties not approved by KDS FX Design in writing; (iii) use of the Software on any operating system or computing device other than the operating system or computing device for which such Software was designed for and licensed for use on. KDS FX Design shall only be obligated to support the then-current production version (version that was cuurent when site was developed) of the Software for a period of three (3) months after such release. Support for any newer version or for other problems not covered under the Agreement may be obtained at KDS FX Design’s then current rates for Professional Services.
SOFTWARE MAINTENANCE:
Software Update Releases
KDS FX Design is not responsible for any 3rd party software (CMS systems such as Joomla, etc) updates or software upgrades. These services can be obtained at KDS FX Design’s then current rates for Professional Services.
TERMINATION:
30 days written notice must be given to KDS FX Design to cease this agreement. You will be liable for any charges prior to the 30 days notice.
This Agreement. This agreement constitutes the sole agreement between KDS FX Design and the Client regarding this Web Design Project. Any additional work not specified in this contract or any other amendment or modification to this contract must be authorized by a written request signed by both Client and KDS FX Design. All prices specified in this contract will be honored for 6 months after both parties sign this contract. Continued services after that time will require a new agreement.
The undersigned hereby agree to the terms & conditions and stipulations of this agreement on behalf of his or her organization or business.
This Agreement constitutes the entire understanding of the parties. Any changes or modifications thereto must be in writing and signed by both parties.
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