General Terms and Conditions of a Website built by ‘The Web Design People’
In this agreement the following terms have the following meaning:
‘The Web Design People’ refers to the ‘The Web Design People’ website, Tim Apps and any person or entity involved directly or indirectly with the production or sale of the ”product”.
The ”product”, ”software” or ”website” refers to anything created or supplied by ‘The Web Design People’. This includes but is not limited to websites, code, images, bulk emails, mailing lists and flash content.
”You” and ”your” refers to the individual, company, entity, your heirs, agents or successors contracting ‘The Web Design People’ to produce the product.
This agreement (”agreement”) is by and between ‘The Web Design People’ and you and is made effective as soon as development of your website begins. This agreement sets forth the terms and conditions of your use, responsibilities and rights when using any resource supplied by ‘The Web Design People’ and represents the entire agreement between you and ‘The Web Design People’.
By participating in payment, you acknowledge that you have read, understand and agree to be bound by all the terms and conditions of this agreement, along with any new, different or additional terms, conditions or policies which ‘The Web Design People’ may establish from time to time with or without notice. You may view the latest version of this agreement at any time at http://thewebdesignpeople.com/termsandconditions.html
1.1 ’The Web Design People’ is not responsible in any way, shape or form for the content supplied by or added by you to the Website. Content includes but is not limited to text, images, code, logos, flash, quotes etc.
1.2 Any fines or charges due to illegal content of the Website which has been supplied by or added by you will be the sole responsibility of you. You hereby indemnify ‘The Web Design People’ and shall continue to indemnify ‘The Web Design People’ for all or any such fines charges and legal costs.
1.3 You give ‘The Web Design People’ full, unrestricted rights to use any and all of your Copyright Works solely for the purpose of the production of the Website.
1.4 Unless images are supplied by you, ‘The Web Design People’ uses images from the Microsoft Design Gallery Live. All images are provided free of charge and are subject to the ”END USER LICENSE AGREEMENT FOR MICROSOFT DESIGN GALLERY LIVE CONTENT”. This can be found at: http://dgl.microsoft.com/.
2.1 All services provided by ‘The Web Design People’ may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any Federal, State or City law is prohibited. This includes, but is not limited to:
a) copyrighted material
b) material ‘The Web Design People’ judges to be threatening or obscene
c) unlicensed software or files
d) material protected by trade secret and other statute
2.2 You agree to indemnify and hold harmless ‘The Web Design People’ from any claims resulting from the use of the service which damages you or any other party.
2.3 ’The Web Design People’ will be the sole arbiter as to what constitutes a violation of this provision.
2.4 ’The Web Design People’ reserves all rights to suspend the Website from any location if there is any breach of this term.
3. Third Parties
3.1 ’The Web Design People’ takes no responsibility for the actions of any third parties used in the development or hosting of the Website.
3.2 Any recommendation or agreement made through or by ‘The Web Design People’ on your behalf relating to third parties, such as web hosting or domain name hosting, falls on the terms and conditions laid out by the third party and ‘The Web Design People’ can not be held responsible or liable for any downtime or loss.
3.3 Any issues created by a third party and directed to ‘The Web Design People’ to research or resolve will incur a charge payable by you.
4. Intellectual Property
4.1 Unless otherwise agreed in writing by ‘The Web Design People’, the copyright and all other rights relating to any software provided to you by or on behalf of ‘The Web Design People’ pursuant to this agreement (the “intellectual property”) will remain the property of ‘The Web Design People’ or where applicable its licensors. This includes but is not limited to html, php, databases, style sheets, scripts, scripting, images, website design and content supplied by ‘The Web Design People’.
4.2 Upon payment in full for the services provided by or on behalf of ‘The Web Design People’ pursuant to this agreement, ‘The Web Design People’ grants you a non-exclusive and non-transferable perpetual license to use the intellectual property for your own business purposes.
4.3 ’The Web Design People’ warrants to you that to the best of its knowledge, it has the right to grant the licenses referred to in this agreement, and the use by you of any software provided by ‘The Web Design People’ will not infringe the rights of any third party.
4.4 You must not copy any of the intellectual property for any purpose.
4.5 You must not de-compile, disassemble, decrypt, extract or otherwise reverse engineer any part of any software that is provided to you by ‘The Web Design People’ without ’The Web Design People’ prior written consent.
4.6 You must hold any software (in source and/or in object code) and other materials provided to you by ‘The Web Design People’ confidential. You must not disclose any of those materials to any third party without ’The Web Design People’ prior written consent. You must also take all reasonable steps within your power to protect the intellectual property of ‘The Web Design People’.
4.7 You agree to pay a $10 000 breach payment for each breach of any of the intellectual property terms made by you within seven (7) days. You also agree to pay any court costs or fees associated in collecting this payment.
5. Website Activities
5.1 None of the software provided pursuant to this agreement are designed or intended to be fault-tolerant or designed or intended for use where their failure or malfunction could lead to economic damage.
5.2 You warrant that you will not distribute or resell any of the website without the written permission of ‘The Web Design People’.
5.3 You will ensure that permitted end-users of such products or software are provided with a notice in the form of a signed agreement agreeing to this agreement.
5.4 You will indemnify ‘The Web Design People’ for any loss, cost, damage or third party claim arising from your use of any product or software or from any breach by you of this clause.
6.1 Except for express undertakings to indemnify and any warranties set out in this agreement:
a) To the extent permitted by the law, ‘The Web Design People’ expressly excludes all conditions and warranties whether express or implied.
b) Notwithstanding any other provision in this agreement, in no event will ‘The Web Design People’ be liable to any party including you for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of this agreement (including for loss of profits, use, data, or other economic advantage), however it arises, whether for breach of this agreement or in tort, and even if ‘The Web Design People’ has been previously advised of the possibility of such damage. Further, liability for such damages shall be excluded, even if inclusive remedies provided hereunder fail their essential purpose. You will indemnify ‘The Web Design People’ and keep it indemnified from and against any claims by any third party for or in respect of such damages.
6.2 Certain provisions relating to the trading of goods and services and other statutes, rules and regulations ‘The Web Design People’ may imply certain non-excludable warranties or conditions. To the extent that they are not permitted to be excluded, ’The Web Design People’ liability for breach of such conditions or warranties and your sole and exclusive remedy in relation to such breaches shall be limited to:
a) in the case of products or software or other goods supplied by ‘The Web Design People’, at ‘The Web Design People’ option:
I. the replacement or repair of those products, software or goods, or the supply of equivalent goods; or
II. the payment of the cost of replacing or repairing the products or software or goods or of acquiring equivalent goods if ‘The Web Design People’ can not supply a replacement; and/or
b) in the case of services, at ‘The Web Design People’ option:
I. supplying the services again; or
II. the payment of the cost of having the services supplied again.
7. Search Engine Optimisation
7.1 Search engine optimisation is a complex and involved procedure. ‘The Web Design People’ will take every measure, to the best of its ability, to optimise your website for search engines but does not make any claim to the rank you will receive on any search engine.
7.2 You are solely responsible for all search engine rankings and will not hold ‘The Web Design People’ liable in any way, shape or form for search engine ranking.
8. Assistance and Facilities
8.1 You will provide ‘The Web Design People’ with all reasonable assistance and facilities free of charge (including without limitation of the means of access and the other items referred to in this document, office facilities, and liaison with the necessary officers and employees of you) in order to permit ‘The Web Design People’ to efficiently provide the Website, the software or services.
9. Agreement Non-exclusive
9.1 You acknowledge that ‘The Web Design People’ is providing services to you on a non-exclusive basis and that ‘The Web Design People’ may provide services of the same or a similar nature as the services to any other party.
10. Website Hosting
10.1 Your website is part of an integrated website matrix with ‘The Web Design People’ website. Therefore your website must be hosted with ‘The Web Design People’.
10.2 If you choose to terminate your website hosting you will forfeit your website and any monies paid.
10.3 Any attempts to undermine or cause harm to a server or customer’s server is strictly prohibited. Legal action will be pursued to the fullest extent of the law for all abuse of the network.
10.4 Your website will be backed up daily to the server and your content will be backed up daily to an external source.
10.5 If you wish to have anything restored from a backup there is a $100 charge that must be paid before the restore takes place.
10.6 ’The Web Design People’ reserves the right to change web hosting companies and web servers without notice.
11. Domain Names
11.1 All domain names registered as part of the free domain name promotion will remain the property of ‘The Web Design People’.
11.2 You will be responsible to pay an annual payment to maintain use of the domain name.
11.3 You are given unrestricted use of the domain name as long as your website is hosted by ‘The Web Design People’.
11.4 If you wish to leave ‘The Web Design People’ you will be given first option to purchase the domain name from ‘The Web Design People’.
12.1 ’The Web Design People’ owns all work and content relating to any product until final payment has been received.
12.2 ’The Web Design People’ reserves all rights to suspend the Website from any location if any payment due is outstanding for more than seven (7) days.
12.3 Payment needs to be made as stated in the payment type. Any transfer fees or charges, subject to the terms and conditions laid out by your bank, must be paid by you.
12.4 Any overdue or late payment will incur a 26.5% compounding annual interest rate calculate and charged daily plus a $35 invoice issuing fee per 5 working days.
12.5 A 50% booking fee for the website and additional domain name payment is due on confirmation of your decision to proceed with a website. To confirm your decision a booking fee isto be paid and are ‘non refundable’ once work has commenced on the site.
12.6 If payment is outstanding for more than thirty (30) days your website will be terminated and all outstanding monies will become due immediately.
12.7 ‘The Web Design People’ accepts Visa and MasterCard credit cards for payment. We do not accept Amex.
12.8 If your credit card is declined or rejected in any way and payment is not received a $5 administration fee will automatically be charged to your credit card for each time it is declined or rejected.
13.1 This Agreement may be terminated in the following circumstances:
a) By either party by giving the other party fourteen (14) days notice in writing to that effect;
b) Immediately by ‘The Web Design People’ by notice in writing if you fail to remedy a breach of this agreement (including any provision as to payment) within seven (7) days of receipt of a notice from ‘The Web Design People’ of such breach requiring it to do so; or
c) By either party immediately by notice in writing if the other party takes any corporate action or other steps are taken or legal proceedings are started (and are not withdrawn, discontinued or struck out within twenty-one (21) days) for its winding up, liquidation or dissolution (other than for the purposes of reconstruction) or the appointment of an administrator, receiver, receiver and manager, official manager, Liquidator, provisional Liquidator, trustee or similar office of it or of any or all of its revenues and assets (“insolvency event”), and such insolvency event remains in existence in respect of such party as the time of service of the notice.
13.2 On termination of this agreement however occurring, all moneys unpaid by you pursuant to this agreement will immediately become due and payable. If such moneys remain unpaid for a period of seven (7) days then (without prejudice to any other rights that ‘The Web Design People’ may have for breach of this agreement or otherwise) ‘The Web Design People’ will be entitled to retake possession of the products and to disable any software provided pursuant to this agreement (including by remote means).
13.3 Upon termination you forfeit your website.
13.4 You also agree to pay any and all court costs or legal fees associated in collecting this payment including time spent by ‘The Web Design People’ at a rate of $85 per hour.
14. Website Reactivation
14.1 If your website is suspended for any reason under this agreement you agree to pay a $250 site reactivation fee before your site is reactivated.
15. Future Use and Marketing of Your Site
15.1 You agree to the following:
a) You consent that ‘The Web Design People’ may use extracts from the Website for demonstration purposes to other parties. This includes but is not limited to screenshots, links to your website, usage of your domain name on letters, Curriculum Vitae’s, websites and other materials provided always that such use does not mislead the public into believing that the Website is ‘The Web Design People’ nor that you and ‘The Web Design People’ are affiliated.
b) You agree that ”Developed and maintained by ‘The Web Design People’” will be discreetly displayed on the bottom right hand corner of your website.
16.1 Only Internet Explore 6 and above is supported for the secure administration area.
16.2 To simplify the invoicing process ‘The Web Design People’ reserves the right, at its discretion, to convert any fees listed in this agreement to the same currency of the invoice if not in Dollars. www.xe.com will be used for the currency conversion and will be rounded up to the next whole number. You agree not to dispute the converted amount and understand that exchange rates change.
16.3 Any notice required or contemplated by this agreement shall be deemed to have been duly given if it is in writing, properly addressed and delivered personally or mailed by registered or certified mail, postage prepaid addressed or by fax or electronic mail to you or ‘The Web Design People’ at the address set out in this agreement or such other address nominated by a party in writing.
16.4 You may not assign any of your obligations under this agreement without the prior written consent of ‘The Web Design People’ , which consent shall not be unreasonably withheld. However ‘The Web Design People’ may arrange for subcontractors or employees to perform any of ‘The Web Design People’ obligations under this agreement.
16.5 ’The Web Design People’ will not be liable to you or to any third party for any non-performance or delay in the performance of its obligations under this agreement, if events or conditions beyond your reasonable control cause the non-performance or delay and ‘The Web Design People’ gives you prompt notice thereof. In no event will this provision affect your obligation to make payments to ‘The Web Design People’ under this agreement except in respect of services that are unable to be performed by ‘The Web Design People’, until they can be performed.
16.6 A failure, delay, relaxation or indulgence by either party in exercising any right, power or privilege conferred on the party by this agreement shall not operate as a waiver of the power or right. A single or partial exercise of any right, power or privilege hereunder does not preclude the further exercise of the same right or the exercise of any other right hereunder. A waiver of a breach does not operate as a waiver of any other breach.
16.7 If any part of this agreement is held by a court of competent jurisdiction to be invalid, then;
a) Where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; and
b) In any case the offending provision must be severed from this agreement the remainder of this agreement shall continue in full force and effect unless such reading down or severance affects the basic nature of this agreement.
16.8 Should any dispute arise under this agreement then the parties agree to attempt to resolve the dispute before either of them shall institute proceedings in a court of competent jurisdiction. The party with the grievance shall first serve a notice on the other party setting out the nature of the dispute and stating how the party wants it resolve the dispute. The other party shall respond within fourteen (14) days. If the dispute is not resolved the parties agree to attend mediation within thirty (30) days in an attempt to resolve the dispute. If the dispute is not resolved in forty five (45) days the parties shall be at liberty to take such further action as they consider appropriate. The rules relating to this clause and how it will be put into effect shall be in accordance with the dispute resolution rules as set out by The Law Society, New South Wales, Australia.
From time to time ‘The Web Design People’ may use third party contractors. Contractors agree to the following:
17.1 You agree to develop the coding and any related material required to create and finalise the contracted work. This includes but is not limited to the code, text, images and content. ‘The Web Design People’ owns all material developed.
17.2 ‘The Web Design People’ will give you as much support and guidance as needed to complete the work. The work will only be complete when it is functioning correctly and is being sold.
17.3 You are required to invoice at each stage to receive payment. Invoices will be paid within 7 days.
17.4 If any agreement is terminated due to non performance you agree to pay an hourly rate of $85 to ‘The Web Design People’ within seven (7) days for time spent on the contract interacting with you before and during termination.
17.5 You agree to pay any court costs of fees associated in collecting this payment.