PLEASE READ THE TERMS CAREFULLY. AS BY INITIATING PAYMENT FOR WEBSITE DESIGN AND BUILDING SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY IT.
This agreement (the “Agreement”) is solely between you (the “Client”) and the party providing Web Design Services under this Agreement, Fresh Concepts Web design (the “Builder”) (collectively the “Parties”). Any packages, or web site design or building services, (the “Web Design Services”) provided to client by Fresh Concepts Web design (the “Builder”) under this Agreement shall be governed by the terms and conditions hereunder.
2. DEVELOPMENT SERVICES.
Builder agrees to perform and provide to Client Web Design Services for development of a web site ("Client Site") that Client desires to make available on the Internet. The Web Design Services and any additional services provided to Client are collectively referred to as the "Services."
b. The Client Site and Specifications.
Builder shall use its reasonable commercial efforts to design, author and develop the Client Site in accordance with the Order Summary (as defined below), which is attached hereto and incorporated by reference as Exhibit A. The Client Site shall incorporate certain materials provided by Builder which include, without limitation, computer software (in object or source code form), script, programming code, data, information, HTML code, trademarks, images, illustrations, graphics, sound, video, multimedia files and/or text for the purpose of designing and developing the Client Site ("Builder Content”). The Client Site shall also incorporate the materials, if any, provided by Client, including, without limitation, trade or service marks, images, illustrations, graphics, multimedia files and/or text ("Client Content”).
a. Credit Card Authorization.
In the event Client pays Builder by means of a credit card, Client hereby authorizes Builder to charge Client’s credit card for all applicable fees incurred by Client in connection with the Services provided under this Agreement. It is Client’s responsibility to notify Builder if Client’s credit card has expired and to notify Builder of any necessary changes with respect to the Client’s credit card or the Services may be interrupted. All fees shall be paid in U.S. dollars and Client shall pay, any sales, use or similar tax associated with such payment.
b. Order Fulfillment..
The Builder shall review and confirm the specifics and prices of the Services ordered and this will be deemed the “Order Summary.” Prior to Builder completing the Client Site, Client must contact Builder and notify them of any errors or discrepancies in the Order Summary, otherwise Builder will develop the Client Site in accordance with the Order Summary. Each website development project will include up to three design drafts of the said website. However if the client does request additional design drafts, each additional web design draft will incur a fee of $150.00.
c. Payment Terms.
Client shall pay Builder the fees as set forth in the Order Summary. Any amounts not timely paid by Client to Builder when due will be assessed an additional 1.5% (or the highest amount allowed by law, whichever is lower) per month. Client is hereby responsible and liable for any fees, including attorney and collection fees, that Builder may incur in its efforts to collect any remaining balances from Client. Client must notify Builder of any billing problems or discrepancies within thirty (30) days of either paying Builder or within thirty (30) days after they first appear on Client’s credit card, if applicable.
4. SITE DEVELOPMENT AND DELIVERY.
a. Beta Version.
Upon Builder’s receipt of all Client Content, if any, and Client payment of all fees as due, Builder shall commence the Services. Client agrees to give Builder artistic freedom in the development of the Client Site. Client agrees to pay Builder a 50% deposit of the total quote amount due for the website development before the initial development of the site begins. The remaining balance is due upon completion of the site. Once the client request for the site to be uploaded to their host provider's server the remaining balance is due immediately.
Upon delivery of the Beta Version to Client, Client shall have up to seven (7) days to review, and provide a written request for revisions to, the Beta Version. Upon receipt of such request for revision, Builder shall use commercially reasonable efforts to implement the requested revisions to the Beta Version that are within the scope of the Order Summary. Upon completion of such efforts, Client shall be deemed to have accepted the Beta Version and the electronic files to the client's website will be released to the client after receipt of payment for the remaining balance due for the client's web development project. If the client does not provide a written copy of requested revisions within (7) days of being notified by the Builder that the Beta Version of the client's site is ready for review. The project will be considered complete and the remaining balance for the development of the said website will be due.
c. Additional Revisions.
Client agrees that requests by Client for revisions to the Beta Version that exceed the scope of Order Summary shall be deemed a proposal for amendment of the Order Summary ("Proposed Revisions”). Upon submission of detailed, written Proposed Revisions to Builder, Builder shall evaluate such Proposed Revisions and submit to Client for Client’s acceptance, a written price quote that shall specify all additional fees, inclusive of time and materials for such Proposed Revisions. If Client agrees to Builder’s price quote, the Proposed Revisions shall be amended to and incorporated by reference into the Order Summary and the fee schedule.
Builder shall use commercially reasonable efforts to deliver the Client Site and/or Beta Version thereof substantially in accordance with the Order Summary.
e. Client Acceptance.
All requests for revisions or changes to the Client Site, the Beta Version or any portion thereof shall be submitted to Builder within seven (7) days of delivery to Client. Client agrees that any delivery by Builder which is not rejected or otherwise the subject of Proposed Revisions within fourteen (14) days of delivery shall be deemed accepted (“Client Acceptance”).
5. CLIENT INFORMATION.
Solely for the purpose of Builder performing its obligations under this Agreement, Client agrees that the Client Information may be transferred to Builder, which includes, but is not limited to, the respective Client’s user I.D., password, name, email address and phone number.
6. PROPRIETARY RIGHTS.
With the exception of Builder Content and any Third Party Materials, Client owns the Client Site and Client Content. “Third Party Materials” means any content, software or other computer programming material which is owned by an entity other than Builder, and which is licensed by Builder or generally made available to Client or the public under published licensing terms, which Builder will use to develop, display or run the Client Site. If the Client request a copy of the Client Site, a copy of all web related files will be emailed to the client within 48-72 business hours. The initial copy of the website files is included in the cost for the website. However,there is a $95.00 processing fee for any additional copies of the Client Site. In addition to the foregoing, Builder shall retain all right, title and interest in the Builder Content and upon acceptance of the terms and conditions of this Agreement, Builder hereby grants Client a perpetual, limited, personal, non-exclusive, non-transferable license to use the Builder Content for the Client Site.
7. LIMITED LICENSE TO CONTENT.
Client hereby grants to Builder, a limited, worldwide, nonexclusive right and license to copy, distribute, transmit, display, perform, create derivative works, modify and otherwise use and exploit the Client Site, any Client Content or Client trademarks (“Client Marks”) provided to Builder hereunder solely for the purpose of rendering the Services under this Agreement. Such limited right and license shall extend to no other materials or for any other purpose and will terminate automatically upon completion of the Services or upon termination of this Agreement for any reason.
8. CONTENT STANDARDS.
Client agrees not to provide Client Content, and Builder will not provide to Client any content, that (a) infringes any third party’s intellectual property or publicity/privacy rights; (b) violates any applicable law or regulation; (c) is defamatory, violent, clearly harmful, infringes on citizen’s rights, obscene or pornographic; or (d) contains any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage or interfere with any system, data or personal information. If the Client is international, then Client agrees to comply with all applicable local and national laws. Builder reserves the right to refuse any other subject matter or content it reasonably deems inappropriate.
9. CLIENT SUPPORT.
For a period of time commencing with the execution of this Agreement and ending upon Client Acceptance, Client may obtain client support from Builder at during such hours and by such means as mutually agreed to by the Parties.
10. TERM AND TERMINATION POLICY.
This Agreement is effective upon Client’s acceptance of the terms herein, and shall continue in effect until such time this Agreement is terminated by either party.
Builder may terminate this Agreement immediately if Client breaches this Agreement, including, without limitation, Client’s failure to pay.
c. Rights Upon Termination.
In the event this Agreement is terminated by the Client, the monetary deposit made by the Client to the Builder at the start of the project is non-refundable and will constitute payment for services rendered by the Builder. Sections 2, 3, 6, 10 (c), 11, 12, 13, 14, and 15 will survive termination of this Agreement.
11. WARRANTIES AND DISCLAIMERS.
a. Builder Warranty.
Builder warrants (a) that the Client Site will conform to specifications or acceptance criteria agreed to by the Parties for a period of one (1) year following delivery of the Client Site (the “Warranty Period”) and (b) that Builder will perform the Services in material conformity to the specifications contemplated hereunder in a professional and workmanlike manner. Any Builder warranties and representations hereunder will not extend or apply to any Client Site modified by any party other than Builder. Builder’s sole responsibility in the event that Client discovers an Error in the Client Site during the Warranty Period, will be to use reasonable commercial efforts to correct such Errors. “Error” means any reproducible error, problem, or defect resulting from: (i) an incorrect functioning of the Builder Content that materially affects the functionality of the Client Site; or (ii) any failure of the Client Site delivered to Client to materially meet the specifications. All warranty claims not made in writing within the Warranty Period shall be deemed waived. Any Builder warranty obligations are personal to Client and may not be extended to any third party, provided however, The Builder’s warranty obligations shall be extended to Client’s successors and assigns.
b. Warranty Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES AND CLIENT SITES ARE PROVIDED “AS IS” AND BUILDER AND HOMESTEAD EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EACH PARTY ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN. ALL CLIENT SITES PROVIDED BY BUILDER TO A CLIENT WILL BE DEEMED ACCEPTED WHEN BUILDER EITHER RECEIVES CLIENT’S APPROVAL, WHICH MAY BE COMMUNICATED IN WRITING BY MEANS OF EMAIL, FAX OR POSTAL DELIVERY, OR WHICH MAY BE COMMUNICATED BY MEANS OF VERBAL APPROVAL, OR WHEN DEEMED APPROVED AND ACCEPTED PURSUANT TO THE TERMS SET FORTH IN SECTION 4.E OF THIS AGREEMENT.
(a) Client Indemnity.
Client will defend Builder against any third party claim, action, suit or proceeding alleging any breach of this Agreement. Subject to Section 13, Client shall indemnify and hold Builder harmless from and against all losses, damages, liabilities and all reasonable expenses and costs incurred by Builder(including, without limitation, reasonable attorney’s fees) as a result of any such third party claim, action, suit or proceeding.
(b) Builder Indemnity.
Builder will defend Client against any third party claim, action, suit or proceeding alleging any breach of this Agreement. Subject to Section 13, Builder shall indemnify and hold Client harmless from and against all losses, damages, liabilities and all reasonable expenses and costs incurred by Client (including, without limitation, reasonable attorney’s fees) as a result of any such third party claim, action, suit or proceeding.
(c) Mechanics of Indemnity.
The indemnifying Party’s obligations are conditioned upon the indemnified party: (i) giving the indemnifying Party prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity; (ii) granting control of the defense and settlement to the indemnifying Party; and (iii) reasonably cooperating with the indemnifying Party at the indemnifying Party’s expense.
13. LIMITATION OF LIABILITY.
ANY BUILDER LIABILITY HEREUNDER SHALL NOT EXCEED THE AMOUNT PAID BY CLIENT TO BUILDER. BUILDER AND SHALL NOT BE LIABLE FOR (1) ANY LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS OR (2) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) REGARDLESS OF THE FORM OR ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF BUILDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
This Agreement shall be governed solely by the laws of the State of Tennessee. Any action under or relating to this Agreement shall be brought solely in the state and federal courts located in Tennessee, with sole venue in the courts located in Tennessee and each party hereby submits to the personal jurisdiction of such courts. Each party agrees that its performance under this Agreement shall in all respects conform to all applicable laws, rules and regulations of the United States governing the export of technical information. Client may not assign this Agreement without the prior, written permission of Builder. Any purported assignment in violation of this will be void and without any effect. Any purported oral modification or amendment of this Agreement in derogation of the foregoing shall be without any effect. Except as otherwise expressly set forth in this Agreement, neither party may waive any right hereunder except expressly and in writing. This Agreement is the entire agreement between the Parties with respect to this subject matter, and supersedes all prior and contemporaneous discussions, negotiations, communications and agreements with respect thereto. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement. The Parties are independent contractors and no agency, partnership, franchise, joint venture or employment relationship is intended or created by this Agreement. Neither party has the power or authority as agent, employee or any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever. Builder is solely responsible for all of its employees or agents and its labor costs and expenses arising therewith. Client will not furnish or otherwise reimburse Builder for any office space, office or business equipment, clerical support, telephone, travel, or any other expense which Builder may incur as a result its performance under this Agreement.