Terms of Service
Client – the entity that enters into a contract with K2S Media and/or Kellen Simpson.
Provider – K2S Media and/or Kellen Simpson
Domain Name – the root address of a website, e.g. www.webaddress.com. All such names must be registered with the appropriate naming authority, which will usually charge a fee.
Downtime – time when the website is not accessible via the Internet. This may be because of a technical failure of the Host or because work is being carried out on the site.
Host – the company on whose system the Website physically resides.
Link, Hyperlink – a ‘clickable’ link embedded on a web page which may take the form of a graphic or text.
Search Engine – a website which contains a directory of websites on the Internet enabling users to find websites by subject matter classification.
Website – a collection of web pages and associated code which forms an integrated presence.
The Work – the subject matter of the contract between the Client and Provider.
Payment is in advance for standard services costing $700 or less. For larger, custom projects we require a 50% non-refundable deposit before the project begins. The fee agreed does not include the cost of domain registration, hosting set up fee or continued hosting unless the product description describes otherwise, or otherwise agreed upon by both parties for custom website projects. In any case where an agreement is made between Client and Provider, and said agreement states the terms of payments, that agreement will supersede section 2.1
Ongoing maintenance is not included by default in any web design project. Ever. We do have custom maintenance plans available. If you feel that you will need maintenance in the future, please contact us accordingly, and an agreement detailing the cost, terms, and scope of the maintenance will be created and agreed upon by both the Client and Provider.
The Provider can take no responsibility for services provided by third parties.
Third Party providers which contract with the Provider or license any software, service, content, design, script, intellectual property, or otherwise, will retain full rights to their work as per our agreement. This means that many tools, services, content providers, scripts, and more which will likely be used in some capacity to complete the work the Provider is providing to the Client will be specifically licensed to the Provider, and thus can not be transferred to the Client.
If the Client chooses to end their work with the Provider, any third party product, software, service, content, design, script, and/or intellectual property used in the scope of the Work by the Provider will end, and can be revoked by the third party owner of said item.
Maintenance and Correction of Errors
The Provider takes no responsibility for the functionality or maintenance (unless a maintenance agreement is in place) of the Website after the Work has been completed. Errors (both technical and typographical) attributable to the Provider will be corrected free of charge, but the Provider reserves the right to charge a reasonable fee for correction of errors for which the Provider is not responsible, including, but not limited to malicious modification of the Website by a third party and typographical errors contained in materials provided to Provider by the Client. The Provider also reserves the right to not fix any such errors upon conclusion of the project. This also applies to any other property, services, feature, product, subscription, or membership which may have been created by the Provider for the Client.
A monthly maintenance agreement will supersede section 3.2 as long as it is in effect and the client is not in arrears.
Extent of Work
Creation and implementation of the website on the Internet is limited to the uploading of all necessary files to the Host, and testing of functionality. No registration of the Website with Search Engines will be undertaken unless otherwise agreed with the Client.
All other services including, but not limited to SEO, content maintenance, search engine rank tracking, link creation, link tracking, analytics, social media service promotion, social media service advertising, social media service maintenance, web 2.0 creation, web 2.0 maintenance, product creation, newsletter creation, newsletter maintenance, directory listing creation, directory listing maintenance, directory listing optimization, social media service/profile optimization, website optimization, website compatibility, mobile device compatibility, mobile device SEO, server maintenance, server upgrades, website security updates, and website feature updates/upgrades are specifically not included unless the Client and Provider have created an agreement stating so, and the Client is not in arrears.
Under no circumstances will the Provider be responsible or liable for financial or other loss or damage caused by the failure or use or misuse of its software, web sites and/or all other technologies, products, and services. The Client should ensure that data on their site is regularly backed up and that a contingency plan is in place to minimize possible losses as a result of software failure. Alternatively we offer a backup service.
Status and Duration of Offers
Proposals and offers for custom website design and development services are valid for a period of 15 days from the date issued. The Provider is not bound to honor offers that have expired. Offers are not legally binding until an acceptable timetable for the work has been agreed upon by both parties. This timetable must be agreed upon within the 15 days that the offer is valid. If an acceptable timetable has not been approved by both parties within 15 days of the offer being made, the offer is deemed to have expired.
Search Engine Listings
The Provider does not guarantee listings on Search Engines and the Client accepts that it is Search Engines and not the Provider who determines whom they list and whom they will not. The Client further understands there is no guaranteed placement or rank on the Search Engines and that a new website may never even appear on Search Engines at all. The Provider does not control Search Engines’ algorithms and huge shifts can appear daily, weekly and even hourly.
There is no guarantee that: web site backups will be successful every or any time, that we will retain a copy of any and/or all backups or that those backups will be usable for future use. The Provider is not liable nor responsible, in any fashion, for any damage or loss of any files, information or any server data during or resulting from these backups. Should any damage occur, the Provider will act in good faith and make a valiant effort to resolve the issue, however, there are no set guarantees.
The Provider reserves the right to change the terms of any and all maintenance agreements at any time, for any reason, without prior notice. These changes may effect current contractual agreements.
The Provider provides free technical support as it relates to a healthy website experience up to 30 days after payment has been made in full. Beyond that, the client is on their own for any misfortune that may occur. The Provider does offer ongoing support at a premium which is determined on a case by case basis.
4. COMPLETION OF WORK AND PAYMENT
Completion of Work
The Provider warrants completing the Work in accordance with its Standard Terms and Conditions to the specifications previously agreed with the Client. The agreed completion date for the Work is approximately 28 to 60 days for standard CMS websites and 60 to 90 days for standard eCommerce websites. If the Work is a custom design and/ or development project, the delivery schedule will be agreed between the parties prior to the start of the project. The Provider will not charge more than the amount previously agreed upon unless the Client has varied the specifications of the Work in any way since the agreement was made. The Provider will not undertake changes to the specifications of the Work which would increase the cost, without prior written authorization from the Client.
Supply of Materials
The Client is to supply all materials and information required for the Provider to complete the Work in accordance with the agreed upon specifications. Such materials may include, but are not limited to, photographs, written copy, logos and other printed materials. Where the Client’s failure to supply such materials leads to a delay in completion of the work, the Provider has the right to extend previously agreed deadlines for the completion of the Work by a reasonable amount. The items required before Work commences are outlined in the appendix, if applicable. Where the Client’s failure to supply materials prevents progress on the Work for more than 7 days, the Provider has the right to invoice the Client for any part or parts of the Work already completed.
Approval of Work
On completion of the Work, the Client will be notified and have the opportunity to review it. The Client should notify the Provider, in writing, of any unsatisfactory points within 7 days of receipt of such notification. Any of the Work which has not been reported in writing to the Provider as unsatisfactory within the 7 day review period will be deemed to have been approved. Once approved, or deemed approved, work cannot subsequently be rejected, and the contract will be deemed to have been completed and the remaining payment under Clause 2.1 Fee Payable will become due (if applicable such as in the case of custom design and/or development projects). The Contract will remain in effect until all obligations have been completed in terms of this Clause.
If the Client rejects the Work within the 7 day review period, or will not approve subsequent Work performed by the Provider to remedy any points reported by the Client as unsatisfactory, and the Provider considers that the Client is unreasonable in his repeated rejection of the Work, the contract will be deemed to have expired and the Provider can take any legal measures to recover both payment for the completed Work and reasonable expenses incurred in recovering payment.
Upon completion of 7 the day review period, the Provider will invoice the Client for the remaining balancing payment in accordance with Clause 2.1 Fee Payable hereof (if applicable), which, in the absence of agreement to the contrary, is to be paid by the Client within 7 days of the date that the invoice was issued. This clause is usually only of relevance for custom design and/or development projects where the payment is split 50% deposit and 50% on completion, but not always.
Remedies for Overdue Payment
If payment has not been received by the due date, the Provider has the right to suspend ongoing work for Client and hosting services, if applicable, until such time that full payment of the outstanding balance has been received. If full payment has still not been received after the final reminder due date, the Provider has the right to replace, modify or remove the Website and revoke the Client’s license of the Work until full payment has been received. By revoking the Client’s license of the Work or removing the web site from the Internet, the Provider does not remove the Client’s obligation to pay any outstanding monies owing.
When full payment is made it represents the client is 100% completely satisfied with any and all work provided by the Provider.
5. INTELLECTUAL PROPERTY
Offers and Proposals
Offers and proposals made by the Provider to potential clients should be treated as trade secrets and remain the property of the Provider. Such offers and proposals or the information contained within them must not be passed to third parties or publicly disseminated without prior written authorization from the Provider. This includes, but is not limited to, technical features, functionality, aspects of design, tactics, market research, competitive research, and pricing information.
Warranty by Client as to Ownership of Intellectual Property Rights
The Client will obtain all the necessary permissions and authorities in respect of the use of all copy, graphic images, registered company logos, names and trademarks or any other material it supplies to the Provider for inclusion on the Website and/or inclusion and/or use in any service provided by the Provider. The conclusion of any contract or agreement between the Provider and the Client shall be regarded as a guarantee by the Client to the Provider that all such permissions and authorities have been obtained and that the inclusion of such material on the Website would not constitute a criminal offence or that of civil relevance. By agreeing to these terms and conditions, the Client removes the legal responsibility of the Provider and indemnifies the same from any claims or legal actions however related to the content of the Client’s site. In clear terms, the Provider takes no responsibility for any content on or around the Client’s web site and is in no way shape or form liable for any such content.
Any Domain Name obtained will belong to the Client, if that registration has been paid for in full (either separately or as part of a website design project). The Client agrees to indemnify the Provider, including any incidental costs, against any claims that a Domain Name applied for, or obtained, violates the intellectual property rights of a third party. The Client warrants that the domain name sought is not a trademark of a third party.
Once the Provider has received full payment of all outstanding invoices and the Work has been approved by the Client in accordance with Clause 4.3 hereof, the Client will be the owner of the Website and its contents. The custom code which provides the extended functionality of the website, ie non-standard WordPress or Profiler code, any third party scripts, plugins, utilities, or services, or those created and maintained by the Provider, will remain the copyright of the Provider and the Client will be granted a license to use it. The intention of this clause is to allow the Provider to re-use the code without limitation, and to prevent the Client from selling code at a commercial level as their own intellectual property, and/or to prevent the client from taking intellectual property from the Provider and supplying it to any other party which would, directly or indirectly, compete with the Provider.
Any code that is not freely accessible to third parties and not in the public domain, and to which the Provider or their suppliers owns the copyright, may not be copied, published, distributed or passed to any third parties in any form without prior written consent from the Provider. Unless previously agreed otherwise in writing, no modifications may be made by the Client or any third party to code to which the Provider or their suppliers owns the copyright. The Provider acknowledges the intellectual property rights of the Client. Information passed in written form to the Provider, and that the Client has indicated is confidential or a trade secret, will not be published or made available in any other way to third parties without the prior written consent of the Client.
6. RIGHTS AND RESPONSIBILITIES
Right to Terminate
The Provider reserves the right to refuse or break a contract without prior notice, if it is believed that the Client, their Website, or any material is illegal, immoral or otherwise unacceptable. If the Client breaks any rules set fourth in this document, the Provider reserves the right to break this contract and no payments shall be refunded. If the client fails to respond to the Provider and/or any of it’s workers/contractors/employees within 10 days of the initial contact attempt, that client shall be considered idle and their project shall no longer be a priority until further notice. The Provider also reserves the right to terminate any and all work obligations, agreements and contracts agreed to by that client if they fail to respond within 10 days. Any money paid will not be refundable after termination and the Provider reserves the right to collect the remaining funds on that project whether the project has been completed or not.
Events Beyond the Control of the Provider
The Provider will not be liable for breach of contract where that breach was due to software, hardware or electrical failure, natural events such as fire or other events beyond the control of the Provider, or those which may be in any way whatsoever caused or influenced by the Client, any third party, and/or any party acting on behalf of, or instruction by, the Client.
Supply and Pricing of Services
The Provider reserves the right to use whoever it feels appropriate at the time for third party software and services, and to alter its prices as necessary without prior notice and without affecting existing contractual pricing agreements.
This Agreement shall be governed by the laws of The United States of America and shall claim venue and jurisdiction for any legal action or claim arising from the contract between the Provider and the Client. The said contract is void where prohibited by law. Anyone in agreement with this contract and who has engaged in work with the Provider will be governed by the jurisdiction of the State of Arizona and any and all procedures will take place in said state.
Survival of Contract
Where one or more terms of the said contract are held to be void or unenforceable for whatever reason, any other terms of the contract not so held will remain valid and enforceable at law.
Change of Terms and Conditions
These terms & conditions may change from time to time. The Client is responsible for reading the terms and conditions of the Provider at reasonable intervals (such as before they sign and agree to any and all contracts and/or make any and all payments). The terms and conditions are subject to change without prior notice.