Updated: December 19, 2020
WEBSITE DESIGN TERMS AND CONDITIONS
These website design terms and conditions are made effective between the parties as of the date the last party signs an associated Project Proposal for Services or Deliverables or by completing an Online Purchase (the “Effective Date”) between the Client named in a Project Proposal or Online Purchase (the “Client”) and Code3 Creative, LLC (the “Designer”), each of which may be referred to in the singular as “Party” or in the plural as “Parties.”
Designer shall perform the Services described in the Project Proposal.
Deliverables must be used only for the designated uniform resource locator(s) (URL) and purpose described in the Project Proposal and may not be duplicated or transferred without the express written permission of the Designer. Services included in the optional Annual WordPress Care Plans are described in Exhibit 1 and Exhibit 2.
CHANGES TO PROJECT SCOPE
Change Request: If Client wants to change the Scope of Work after acceptance of this Agreement, Client shall send Designer a written Change Order describing the requested changes in detail. Within 5 business days of receiving a Change Order, Designer will respond with a statement proposing designer’s availability, additional fees, changes to delivery dates, and any modification to the Agreement. Designer will evaluate each Change Order at its standard rate and charges.
Major Change: If Client requests are at or near ten (10) percent of the time required to produce Deliverables, or the value of the Scope of Services, Designer shall be entitled to submit a new and separate Proposal to Client for written approval. Designer shall not begin work on the revised services until he receives a fully signed revised proposal and any additional fees.
Minor Change: If Client requests are not Major Changes, Client will be billed on a time and materials basis at Designers hourly rate of sixty ($60) dollars per hour. Such charges shall be in addition to all other amount payable under this Agreement, despite any maximum budget, contract price or final price identified. Designer may extend or modify any delivery schedule or deadlines in the Agreement as may be required by such changes.
Acceptance/Rejection: Client will have five (5) business days to respond in writing accepting or rejecting the new proposal. If Client rejects the proposal, Designer will not be obligated to perform any services beyond those in the original Agreement.
Access Authorization. Client authorizes Designer to access all directories and files of Client’s account(s) with the applicable third-party hosting providers or domain registrar, DNS services (e.g. Cloudflare or other content delivery network provider) and all directories and files using an FTP client (e.g. Filezilla). Additionally, Client authorizes Designer permission to install, uninstall or update any Client directed feature, necessary WordPress core files, plugins or themes for maintenance and security purposes.
Fees. Client agrees to pay Designer all the fees listed in the Project Proposal.
Expenses: Client will pay Designer expenses, including but not limited to: (a) Incidental and out-of-pocket expenses at cost plus Designers standard markup of fifteen (15) percent; (b) Mileage reimbursement, other than normal commuting, at $0.535 per mile with client approval; (c) Travel expenses, other than normal commuting, but including airfare and rental vehicles, with client approval.
Additional Costs: Pricing in the Project Proposal includes Designer fees including but not limited to concept, design, technical and testing and training phases, site setup hosting, plugins and software required for the website. Additional costs may be incurred as detailed in the Project Proposal.
Recurring Fees: Some third-party organizations that provide plugins or software utilized by Designer in the creation of the project may require recurring fees (typically monthly or annually). Payment of these fees will be the full responsibility of the Client and will be detailed in the Project Proposal.
HOSTING AND CONSTRUCTION
Construction on Designer’s Server: Unless otherwise specified in a Project Proposal, Designer will host the construction of Deliverables on Designer’s server. Designer licenses Deliverables to reside on Client’s server and for Client to use any feature or function of the Deliverables only after Client approves the Deliverables in accordance with the Approval Periods described below.
Construction on Client’s Server: In the event that construction of Deliverables occurs on Client’s server, Client grants to Designer all necessary access authorization for Designer to complete the Deliverables. Further, Designer grants the applicable license(s) to the Deliverables only after Client approves the Deliverables in accordance with the Approval Periods described below.
Hosting Fees: If the Deliverables are not completed by the completion date described in the Project Proposal, and the delay is not caused by Designer, Client agrees to pay Designer sixty-five dollars ($65) per month for hosting until the Deliverables are migrated to Client’s server.
Payment Schedule: Client shall pay Designer twenty (20) percent of full cost as detailed in the Project Proposal as a deposit for project commencement. The balance of the full cost is due on completion date, and prior to file relinquishment, or upload and/or assembly of website on Client’s web server.
Invoices: All invoices are payable within thirty (30) days of receipt. Invoices shall list any expenses and additional costs as separate items.
Late Fee: A monthly service fee of two (2) percent, or the maximum allowed by law, is payable on all overdue balances.
Crediting Late Payments: Payments will be credited to late payments first, then to unpaid balances.
Collection Expenses: Client shall pay all collection or legal fees caused by late payments.
Withholding Delivery: Designer may withhold Deliverables if accounts are not current or overdue invoices are not paid in full.
Withholding License: All grants of any license to use or transfer ownership of any intellectual property rights under this Agreement are conditioned on full payment, including all outstanding additional costs, Expenses, Fees, or any other charges.
Designer Delays: Designer shall use all reasonable efforts to meet the Project Proposal delivery schedule. Designer may extend the due date for any Deliverable by giving written notice to Client. The total of all extensions shall not exceed thirty (30) days.
Client Delays: Client shall use all reasonable efforts to provide needed information, materials and approvals. Any delay by Client will result in a day-for-day extension of the due date for all Deliverables.
General Delays: Any delay caused be conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day-for-day extension any performance due. Each party shall use reasonable efforts to notify the other party, in writing, of a delay. Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war, terrorism and epidemics.
EVALUATION AND ACCEPTANCE
Testing: Designer will test and correct Deliverables using commercially reasonable efforts before providing Deliverables to Client.
Approval Periods: Client shall, within five (5) business days after receiving each Deliverable, notify Designer in writing of any failure to comply with the specification of the Project Proposal or of any other objections, corrections or changes required. Designer shall, within ten (10) business days of receiving Clients notification, correct and submit a revised Deliverable to Client. Client shall, within five (5) business days of receiving a revised Deliverable, either approve the corrected version or make further changes. If after five (5) corrections by Designer, Client finds the Deliverables are not acceptable, Client may terminate this agreement subject to the termination clauses of this Agreement. If Client fails to provide approval or comments during any approval period, those Deliverables will be considered approved and accepted. All objections, corrections and changes shall be subject to the terms and conditions of this Agreement.
Client acknowledges that it is responsible for performing the following in a reasonable and timely manner: (a) Provide Client Content in a form suitable for use in the Deliverables without further preparation by Designer, unless otherwise specified in the Project Proposal; (b) proofread all Deliverables. Client will be charged for correcting errors after the acceptance of any Deliverable; (c) Make decisions regarding other parties.
ACCREDITATION AND PROMOTION
Accreditation: Designer shall be entitled to place accreditation, as a hyperlink or otherwise, in the form, size and location as incorporated by Designer in the Deliverables on each page of the Deliverables.
Promotion: Designer retains the right to reproduce, publish and display the Deliverables in Designer’s portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.
Promotional Approval: Either party, subject to the other’s reasonable approval, may describe its role in the Project on its website and in other promotional and marketing materials, and, if not expressly objected to, include a link to the other party’s website.
Client’s “Confidential Information” includes information that Designer should reasonably believe to be confidential. Designer’s “Confidential Information” includes the source code of any Designer Tools. All material considered confidential by either party shall be designated as confidential. Confidential Information shall not be disclosed to third parties and shall only be used as needed to perform this Agreement.
Confidential Information shall not include any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third-party without a restriction on disclosure.
RELATIONSHIP OF THE PARTIES
Independent Contractor: Designer is an independent contractor. Designer shall determine, in its sole discretion, the manner and means by which the Services are accomplished. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Designer and the work product or Deliverables prepared by Designer shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by this Agreement.
Design Agents. Designer shall be allowed to use third parties as independent contractors in connection with the Services (“Design Agents”). Designer shall remain fully responsible for Design Agents’ compliance with this Agreement.
No Exclusivity. This Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Designer, and Designer shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Designer.
REPRESENTATIONS AND WARRANTIES
By Client. Client represents and warrants to Designer that: (a) use of the Client Content does not infringe the rights of any third-party; (b) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third-party Materials; (c) Client will obtain all necessary and appropriate rights and licenses to grant license to Designer to use Third-party Materials.
By Designer: Designer represents and warrants to Client that: (a) Designer will provide the Services identified in the Agreement in a professional and workmanlike manner; (b) Designer shall secure all necessary rights, title, and interest in and to the Deliverables, including Designer Tools, sufficient for Designer to grant the intellectual property rights provided in this Agreement; (c) To the best of Designer’s knowledge, the Deliverables will not violate the rights of any third parties; (d) If Client or third parties modify the Deliverables or use the Deliverables outside of the scope or purpose of this Agreement, all representations and warranties of Designer shall be void.
ALL SERVICES AND DELIVERABLES ARE PROVIDED “AS-IS.” EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, DESIGNER MAKES NO WARRANTIES WHATSOEVER. DESIGNER EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT. DESIGNER FURTHER DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES WILL BE ERROR-FREE, UNINTERUPTED, FREE FROM VIRUSES OR SECURE FROM SECURITY INTRUSIONS.
INDEMNIFICATION AND LIABILITY
By Client: Client shall indemnify Designer from any and all damages, liabilities, costs, losses, expenses or attorney fees arising out of any claim, demand, or action by a third-party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Designer shall promptly notify Client in writing of any third-party claim or suit. Client shall have the right to fully control the defense and any settlement of such claim or suit.
By Developer: In the case of a third-party lawsuit or proceeding based on a claim that Deliverables breach the third-party’s intellectual property rights, and it is determined that such infringement has occurred, Designer may at its own expense, replace any infringing content with non-infringing content. Additionally, in the case of a third-party lawsuit or proceeding based on a claim that Deliverables do not conform with ADA website accessibility requirements as set forth by the United States Department of Justice “Accessibility of State and Local Government Websites to People with Disabilities”.
Limitation of Liability. IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF DESIGNER, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES (“DESIGNER PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE FEES PAID BY THE CLIENT. IN NO EVENT SHALL DESIGNER BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY DESIGNER, EVEN IF DESIGNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
TERM AND TERMINATION
Term: This Agreement is effective when both Parties sign and shall continue until all Services are complete as described in a Project Proposal or Online Purchase, or until the Agreement is terminated.
Termination for Cause: Either party may terminate this agreement at any time on written notice if the other party breaches any of its material responsibilities or obligations under this Agreement and fails to cure that breach within five (5) days.
Termination for Convenience: Either party may terminate this agreement at any time and for any reason on thirty (30) days prior written notice to the other Party. If Client terminates the Agreement under this section, Designer shall, at Clients reasonable discretion, complete any work assigned or scheduled during the notice period in accordance with the terms and conditions of this Agreement.
Termination Fees: In the event of termination, Client shall pay Designer for the Services performed through the date of termination in the amount of a prorated portion of the fees due. Client shall pay all Expenses, Fees, and additional costs incurred through the date of termination.
Intellectual Property: If Client terminates and on full payment of compensation, Designer grants Client right and title as provided by this Agreement with respect to those Deliverables provided and accepted by Client as of the date of termination.
Confidential Information: On expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) all rights and obligations regarding Confidential Information shall survive.
LICENSE AND OWNERSHIP
Each Party retains all rights and title to intellectual property that was owned by such Party and that existed prior to the date that Designer began performing Services for the Client. Additionally, each Party retains all rights and title to intellectual property it develops independently from the Services performed under this Agreement. To the extent that Designer develops any intellectual property for the Client use, the Designer grants to Client a limited, non-exclusive, license to use and display the Deliverables created specifically for Client by Designer in accordance with this Agreement. Deliverables not created specifically for client including icons and stock images remain the property of Designer or third-party from where they originated.
Client Content: Client Content is the exclusive property of the Client. Client grants Designer a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Designer’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
Designer Tools. All Designer Tools are and shall remain the exclusive property of Designer. Designer grants Client a nonexclusive, nontransferable, perpetual, worldwide license to use the Designer Tools solely to the extent necessary with the Deliverables for the Project. Client must not transfer, duplicate, or modify the Deliverables in any manner that would affect the Deliverables or the embedded Designer Tools.
Warranty Period. During the first 30 days following expiration of this Agreement, Designer shall provide up to 5 hours of Support Services at no additional cost to Client. Support Services means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies. Requests for additional support will be billed on a time and materials basis at Designers standard rate.
Maintenance Period. After the Warranty Period expires and at Client’s option, Designer will provide an annually renewable website maintenance care plan for a period of twelve (12) months. The Services provided during the maintenance period are described in Exhibit 1.
No Enhancements: The services in the Warranty Period and the Maintenance Period do not include enhancements to the Project or other services outside the scope of the Proposal.
Alterations. Alteration of any Deliverable is prohibited without the express permission of Designer. Designer will be given the first opportunity to make the required alterations. Unauthorized alterations shall constitute additional use and will be billed accordingly.
Negotiation: Parties agree to attempt to resolve any dispute by negotiation between the parties.
Litigation: In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of Oregon. The parties waive any jurisdictional or venue defenses available to them and further consent to service of process by mail.
Attorney Fees: The prevailing party shall be entitled to recover its attorneys’ fees and costs in any dispute resolved by binding arbitration or litigation.
Modification/Waiver: Modifications to this Agreement must be in writing and signed by both parties. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
Notices. All notices under this Agreement shall be given in writing either by: (a) Fax or Email, with return confirmation of receipt; (b) Certified or Registered mail, with return receipt requested. Notice will be effective when received, or in the case of email or fax, on confirmation of receipt.
No Assignment. Rights or obligations under this Agreement shall not be transferred, assigned or encumbered without the prior written consent of the other party.
Governing Law. This Agreement shall be construed in accordance with the internal laws of the State of Oregon, without regard to conflict of laws rules. Venue shall be in a court of competent jurisdiction in the State of Oregon, Clackamas County, and both parties expressly consent to jurisdiction in such courts.
Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. Where possible the invalid or unenforceable provision shall be interpreted in such manner as to be effective and valid under applicable law.
Headings: Headings and numbering used in this Agreement are for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of this Agreement, and shall not have any legal effect.
Complete Agreement: This Agreement is the entire understanding of the parties and supersedes all prior understandings and documents relating to the subject matter of this Agreement.
Agreement means the Project Proposal or Online Purchase, these Terms and Conditions, and attachments or exhibits.
Online Purchase means a purchase of Services that references these terms on one of Designer’s websites.
Project means the scope and purpose of the Client’s identified usage of the work product as described in the Project Proposal.
Services means all work to be performed for Client by Designer as described and otherwise further defined in the Project Proposal.
Deliverables means the work product specified in the Project Proposal to be delivered by Designer to Client.
Client Content means all materials, writing, images or other creative content provided by Client used in preparing or creating the Deliverables.
Third-party Materials means proprietary third-party materials which are incorporated into the Deliverables, including without limitation stock photography or illustration.
Designer Tools means all design tools developed and/or used by Designer in performing the Services, including pre-existing and newly developed software including source code, Web authoring tools, type fonts, plugins, scripts and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements. In the event that Client wishes to maintain the third-party functionality derived from Designer Tools, Client will be responsible for procuring its own separate license(s) through such third-party or its authorized reseller. Designer Tools may be removed by Designer if Client uses or attempts to use the Designer Tool inconsistent with its respective license.
Exhibit 1 – Essentials Care Plan
- Core, Theme and Plugin Updates
- Designer updates WordPress core, themes and plugins to increase functionality, security and prevent incompatibilities.
- 24/7 Security Monitoring
- Constant security monitoring to protect Client’s sites from hackers, malware and other threats that may harm Client’s sites including brute force protection, strong password enforcement, and 2-factor authentication.
- Cloud Backups (Once Daily)
- Client’s website content and data are backed-up once daily to an off-premises cloud server for prompt website restoration.
- Websites Uptime Monitor
- Designer continuously monitors Client’s websites and hosted server. If Client’s site becomes unavailable, Designer will promptly investigate and work to restore.
- Monthly Activity Report
- Designer will send Client a report each month detailing what activities have been completed to manage and maintain Client’s websites including, but not limited to WordPress/plugin/theme updates, security, performance, and analytics.
- Speed and Performance Optimization
- Client’s sites will load using image compression and code optimization (yup, nerd-alert) for improved performance.
Exhibit 2 – Pro Care Plan
- All Services Included in Exhibit 1 – Essentials Care Plan
- Emergency Malware Repair
- Designer will provide and emergency scan to determine what level of infection exists. Designer will then utilize proprietary and third-party resources to remove the malware and restore Client’s website as closely as possible to pre-attack status.
- E-Commerce Support
- Designer will provide Client Content updates for your website that currently uses and has WooCommerce or Easy Digital Downloads installed and activated. This support does not include implementing a new installation or setup of WooCommerce or Easy Digital Downloads.
- Existing Content Updates
- Designer will add, edit or remove Client Content from any existing pages or sections on your website.
- Cloudflare CDN
- Designer will add Client’s website to the third-party Cloudflare Content Delivery Network which improves site speed worldwide and adds a firewall against hacker attacks.
- Link Monitor
- Designer will perform weekly scans of Client’s website to check for broken links. Upon a broken link being located, Designer will contact Client within 1 hour of finding the broken link for input on how Client would like the broken link fixed.
- Priority Support
- Priority help-desk support from Designer’s support team based in the USA.