1) “Service Provider” or “Web Talent” or “us” or “we” shall mean Web Talent, LLC., whose registered office is 235 North Prince Street, Lancaster, PA 17603.
2) “Client” or “You” shall mean any person or entity that enters into any contract or agreement with Service Provider for products and/or services to be provided by Service Provider, including without limitation ordering any products or services through the Service Provider’s website or signing up as a client. If Client is an entity, Client warrants that the individual executing these Terms and conditions on its behalf is duly authorized to do so.
3) You hereby agree to abide by, comply with and be legally bound by the policies, terms and conditions hereinafter set forth (these “Terms and Conditions”).
4) For purposes of these Terms and Conditions, references to the products and/or serv ices provided by Service Provider shall include, without limitation, logos, designs, names, graphics or similar materials or information, whether or not protectable, printing services, web design, stationery, brochures, marketing materials, search engine marketing, other design services, application development, custom programming applications, and related services offered by Service Provider, and any and all future product or service offerings of Service Provider.
1) Service Provider agrees to provide products and/or services for Client (“Work”) in accordance with all current and future proposals and quotations. Service Provider and Client (“Parties”) agree that the policies of these Terms and Conditions will apply to any proposal or quotation as though incorporated therein, unless specifically contradicted therein. It is the Parties’ intent that these Terms and Conditions be a standing agreement affecting all work done by Service Provider for Client at any time.
2) The performance by Service Provider of its duties under these Terms and Conditions will be as an independent contractor, and nothing in these Terms and Conditions or any Proposal or Quotation will create or imply a relationship of regular employment, agency, joint venture, partnership or other business relationship between Service Provider and Client.
3) Client may request additional services not covered by a given proposal or quotation . Service Provider reserves the right to, at Its sole discretion, modify the existing proposal or quotation incorporating the additional services, or create a separate and new proposal or quotation for the additional services.
C) CONFIDENTIAL INFORMATION
1) All information relating to Client that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by Service Provider and will not be disclosed or used except to the extent necessary to the performance of Service Provider’s duties under these Terms and Conditions and any proposal or quotation with Client.
2) All information relating to Service Provider that is known to be confidential or prop rietary, or which is clearly marked as such, will be held in confidence by Client and will not be disclosed or used except to the extent necessary to the performance of Client’s duties under these Terms and Conditions and any proposal or quotation.
3) These obligations of confidentiality do not apply to the extent necessary to conform w ith lawful demands made by any law enforcement agency of the United States or its subdivisions.
4) These obligations of confidentiality apply indefinitely despite completion or terminati on of these Terms and Conditions or any proposal or quotation, and are binding upon the Parties and their legal representatives, successors, and assigns.
1) Service Provider warrants that the Work will be provided in a workmanlike manner, in conformity with generally prevailing industry standards.
2) Client acknowledges that web design, application development and custom programming solutions are inherently complex and ongoing tasks. Thus, although Service Provider will thoroughly test its Work before delivery, Service Provider does not guaranty that the Work will be bug-free. If Client or Service Provider can identify any application bugs, deficiencies or other application defects, and Service Provider is able to reproduce the problems and determine that they are caused by Service Provider’s error, Service Provider will make every effort to remedy these problems. In most cases these fixes are performed within a forty-eight (48) hour period, though this time period cannot be guaranteed. This bug-fixing warranty shall apply for sixty (60) days after Client’s final acceptance of the Work. Notwithstanding anything herein to the contrary, the bug-fixing warranty shall become immediately null and void If anyone other than a duly authorized agent of Service Provider modifies, alters or otherwise performs maintenance on the programming code designed by Service Provider.
3) Notification of Service Provider by Client of any defects in the Work must be made in writing (e-mail or letter), and should if possible include all the information necessary to find and reproduce the problem, so that it can be solved as quickly as possible.
4) In the absence of notice by Client that defects remain, the Work will be deemed accepted by Client after sixty (60) days from the Work’s delivery.
5) THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND INCLUDING ANY ORAL OR WRITTEN REPRESENTATIONS MADE ON OR PRIOR TO THE DATE OF THIS AGREEMENT.
E) LIMITATION OF LIABILITY
1) In no event will Service Provider be liable for any loss of profit or revenue by Client, or for any other consequential, incidental, indirect or economic damages suffered by Client, whether in contract, in tort or otherwise, arising because of or related to the Work . This limitation applies even if Client has warned Service Provider of the possibility of such harm. The total liability of Service Provider for all claims of any kind arising from or related to these Terms and Conditions, or due to any act or omission by Service Provider, will not exceed the amount actually paid by Client to Service Provider during the twelve (12) month period before the date the claim arises, however, there shall be no liability of service provider for Work that had been previously reviewed and approved by Client regardless of any subsequently discovered errors.
2) Client will indemnify and hold Service Provider harmless against any claims by third parties, including all costs, expenses and attorneys’ fees incurred by Service Provider therein, arising out of or in conjunction with Client’s performance under or breach of these Terms and Conditions.
3) Client warrants and represents that it is the rightful owner or licensee of all content that it may provide to Service Provider for use in the Work. Client will indemnify and hold Service Provider harmless against any claims, known or unknown, for infringement of intellectual property, including but not limited to infringement of any copyright, trademark, patent or trade secret made against Service Provider by any third party.
4) Service Provider may make recommendations for third-party products or services such as a domain name registrar or Web hosting service, but cannot guarantee the quality of such products/services or those who provide them. Service Provider therefore assumes no liability for such recommendations.
5) Client acknowledges that Service Provider is in no way responsible for the substantive content, including but not limited to information conveyed or communications expressed, of the product resulting from the Work. Client will indemnify and hold Service Provider harmless from any claims arising from all current and future substantive content of the product resulting from the Work.
) WEB & EMAIL HOSTING
1) Unsolicited Electronic Mail. You are expressly prohibited from sending unsolicited bulk mail messages (“junk mail” or “spam”). This includes, but is not limited to, bulk-mailing of commercial advertising, information announcements, and political tracts. Such material may only be sent to those who have specifically requested it. Malicious or threatening email is also prohibited. We reserve the right to immediately deactivate your use of our service if we discover such activity. Further, you agree to indemnify and hold us harmless from any claim resulting from your use or distribution of electronic mail services through the service provided through this Agreement. Anyone using our services for spamming will be immediately subject to a $250 cleanup/network abuse fee.
2) Service Provider’s hosting servers are not to be used for the purpose of hosting scripts or images for data collection or any other purpose to reduce the load on another Web host, or for any other reason. Servers are not to be used for the hosting or serving of file downloads. Any site with traffic or disk usage consisting more than 33% of file downloads (non html traffic) may be suspended. Customers are not permitted to open connections to the server at a rate of more than 3,000,000 connections/month. Customers are not permitted to run scripts on their account with us, to monitor connections and status’s of other servers (gaming servers for example). Customers are not permitted to get multiple accounts with Service Provider, for the purpose of getting extra bandwidth only, to avoid bandwidth overage charges. Customers are not permitted to host multiple separate domains (not referring to parked domains) on one account unless this is a feature of they account they have ordered. Service Provider can and will terminate accounts of people using our servers not to host their domain but only scripts.
3) Guaranteed Uptime – The Service Provider network of computers, will have a guaranteed aggregate average uptime of 99.5% over the course of three months (90 days). This does not include scheduled downtime for maintenance on servers, which will be minimal, and necessary. This also doesn’t include mass-network problems such as major backbone problems.
4) Service Fees – All payments are due on time, without exception. Accounts with any past due invoices are at risk of suspension and late fees. Any account suspended for more than a 30 day period are terminated without backup.
5) Cancellation – All cancellations must be made in writing, requests should be sent to firstname.lastname@example.org. In the event you cancel your service, you will be charged in full for the entire month in which you canceled your service. Account cancellations for accounts with a negative balance will be passed on to collections, and all services rendered to the party with the negative balance will be terminated, including domain registrations. In the event you have elected to prepay subsequent, additional months’ Service Fees, we retain the right to charge you an administrative fee of 50% and deduct the administrative fee from the subsequent, future months’ Service Fees before refunding them to you. There is a $50 administrative fee for any illegitimate chargebacks placed against us. Any illegitimate chargebacks or threatened illegitimate chargebacks are grounds for immediate account cancellation.
6) Hosting Liability – SERVICE PROVIDER MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. In no event will Service Provider be liable for any loss of profit or revenue by Client, or for any other consequential, incidental, indirect or economic damages suffered by Client, whether in contract, in tort or otherwise. You assume all risk and liability resulting from the use or functionality of the service, whether used solely or in combination with other goods and/or services. Service Provider neither assumes nor authorizes any person to assume any other liability in connection with the sale or use of the service. Service Provider will not be held liable in any capacity for any service failures including any acts or omissions related to data. In the event of data loss or a service interruption, Service Provider will not be held responsible and will have no liability.
G) LIMITED GUARANTEE
1) If Client is not satisfied with the initial drafts provided by Service Provider, and has paid the full fee up-front or fifty-percent (50 %) of the full fee, Client may request a refund from Service Provider in writing within three (3) business days of Client’s receipt of the initial drafts. Upon timely receipt of the refund request, Service Provider will review your request and if Service Provider’s management deems they have not delivered services in an efficient, effective and workmanlike manner pursuant to the proposal or quotation, a refund will be issued in the amount of your total payment, less any out of pocket expenses. Notwithstanding anything to the contrary herein, no refund shall be available for Clients who contract our services on behalf of another person or entity. Furthermore, if Client requests revisions to any of the initial drafts Client may still be entitled to a refund, however Service Provider reserves the right to deduct $100 for each re-draw/draft after the first, and $50 for each revision thereafter.
Graphic design, Web design, search engine marketing, application development and custom programming are tasks involving the use of personal skill and style to suit a client’s needs. For this reason neither Party may assign these Terms and Conditions or any Proposal in whole or in part without the prior written consent of the other Party. This Agreement, with the continued restriction on assignment, is binding upon the Parties and their legal representatives, successors, and assigns.
I) WORK PROPERTY OWNERSHIP
1) Ownership, with all right, title and interest of any work product created as part of the Work shall reside with Service Provider while the Work is being performed and shall only pass to Client upon acceptance by Service Provider of final payment in full for all such Work.
2) Notwithstanding any provision to the contrary herein, Service Provider reserves the right to use, display or demonstrate its Work to current or prospective clients in a businesslike and prudent manner for purposes of showing competency and/or capabilities unless otherwise specifically stated in a Proposal. Any and all confidential or proprietary information shall be protected as stated herein. Further, Client agrees to allow Service Provider to use the Work in advertising and promotional materials intended for the public at large as Service Provider may determine. Service Provider will notify Client of such advertising and promotional plans. If Service Provider does not receive written instruction from Client within 72 hours of such notice indicating that Client does not wish such use of likenesses and information by Service Provider, Service Provider may, at its sole discretion, proceed with such use in advertising and promotional materials.
1) Unless terminated as provided elsewhere in these Terms and Conditions, any proposal or quotation will extend to and terminate upon final completion and acceptance of the Work specified in that proposal or quotation.
2) Client may terminate any Proposal and/or these Terms and Conditions without cause u pon thirty (30) days’ written notice. In the event of termination without cause, Client agrees to pay Service Provider for all Work performed up to the date of termination.
3) Either party may terminate these Terms and Conditions or any proposal or quotation for material breach on twenty-one (21) days’ written notice, provided that opportunity has been given to cure the breach. Termination for breach will not preclude the terminating party from exercising any other remedies for breach.
4) Because these Terms and Conditions contains necessary terms for proposals and quotations, termination of these Terms and Conditions will be deemed a termination of all proposals and quotations as well.
5) Neither Party will be held responsible for any delay or failure in performance of its duties to th e extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control.
6) Unless otherwise terminated pursuant to these Terms and Conditions, these Terms and Conditions shall automatically terminate on the last day of the continuous two (2) year period following the last day any Work is performed on behalf of Client.
7) If these Terms and Conditions are terminated for any reason, Service Provider will not perform any Work on behalf of Client unless Client executes new Terms and Conditions with Service Provider, it being understood that the provisions of the new Terms and Conditions may be materially different than these Terms and Conditions. This provision shall survive the termination of these Terms and Conditions.
K) ENFORCEMENT & ARBITRATION
1) This Agreement will be governed by and construed in accordance with the laws of the State of Pennsylvania.
2) If any term of these Terms and Conditions if found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of these Terms and Conditions will remain in force.
3) Any dispute arising under these Terms and Conditions will be subject to binding arbitration by a single Arbitrator, through the American Arbitration Association, in accordance with its relevant industry rules if any. This arbitration is to take place in Lancaster County, Pennsylvania. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of these Terms and Conditions. Judgment on any award rendered by the Arbitrator may be entered in any court of competent jurisdiction.
4) If any litigation is needed to enforce the terms of these Terms and Conditions, the prevailing party will be entitled to reasonable attorneys’ fees and costs., and Client hereby consents to the jurisdiction and venue of the Court of Common Pleas of Lancaster County, Pennsylvania and/or the United States District Court for the Middle District of Pennsylvania in any and all actions or proceedings arising from these Terms and Conditions, proposals or quotations.
5) A waiver of any breach by either Party will not be considered a waiver of any succeeding breach or serve to deny either party any remedy it may have for further breaches. Any waiver must be in writing and signed by the waiving party.
L) PRICE & PAYMENT
1) The amount due for any specific project will be stated in the proposal or quotation.
2) The quoted price in a Proposal does not include costs of travel or necessary out-of-pocket expenses such as photocopying, long-distance telephone calls, mailing or applicable taxes. All such costs are to be paid by Client In addition to the amount of the proposal or quotation
3) The quoted price in a Proposal might not include recurring costs such as, maintenance costs, web hosting costs, third-party licensing fees. All such costs are to be paid by Client In addition to the amount of the proposal or quotation.
4) Charges based on proposals or quotations will be billed by invoice on a monthly basis. Additional costs will be billed to Client by invoice thirty (30) days after such charges are incurred. Payment may be made by check, money order, wire transfer or by credit card. Credit card payments will only be accepted for payment through our website. Credit card transactions may include a 3% processing fee.
5) Client agrees to review invoices promptly upon receipt, and to make any requests for explanation or corrections promptly. Any invoice shall be deemed accepted in full, seven (7) days after the invoice date unless Service Provider receives written notice in the form of an e-mail or letter.
6) All invoices are payable within fourteen (14) days of receipt. Invoices not paid within thirty (30) days of receipt will be considered overdue and will be charged a service fee of 2% per month. Failure to submit payment within sixty (60) days will result in suspension of services and the commencement of collection proceedings. Service Provider does not transfer intellectual property rights to its work to Client until final payment for a project is accepted (see below). Client may not use any portion of Service Provider’s work before payment has been received and accepted in full. Any such uses is an infringement of federal copyright law and may be subject to accompanying penalties.
7) Service Provider reserves the right to change these payment terms based on clients credit history.
8) The performance of the Work my rely on activity by or feedback from Client. Client agrees that if a portion of the Work has been delayed by a period of at least sixty (60) days because of client’s inactivity or lack of feedback, Service Provider may send Client an invoice for services rendered, such invoice being subject to the payment requirements of these Terms and Conditions.
9) If a proposal or quotation contains an internet marketing commitment for a designated period of time with monthly payments, Client agrees that if the Work related to those proposals or quotations is terminated by Client prior to the expiration of such designated period of time, Service Provider may deem the remaining amounts to be paid under the commitment to be immediately due and payable by Client. Client shall pay such amount within thirty (30) days of cancellation, beyond which time the amounts will be subject to the late fees as described in these Terms.
These Terms and Conditions together with any Proposal(s) or Quotation(s) signed by the Parties constitute the complete agreement between the Parties with respect to their subject matter, and supersedes all contracts, writings or other communications made on or before the date of signing. No other agreements are part of the contract. Any change to these Terms and Conditions or any Proposal(s) must be made mutually in writing.
N) CLIENT’S OBLIGATIONS
1) Client shall provide Service Provider with one individual contact person who is authorized to carry out and is responsible for all interactions with Service Provider regarding the Work.
2) Unless otherwise specified in a proposal or quotation, Client shall deliver to Service Provider in electronic form (in any mutually agreeable program format) the content for use in performing the Work in a timely manner. Client is solely responsible for obtaining all required licenses and permissions to provide and use the content as contemplated in the proposal or quotation.