THIS Terms of Service Addendum supplements any written contract between any
Client and C O'Malley & Associates OR any work done without a contract in place, and establishes detailed specifications,
parameters and elements for such work. In consideration of such
agreement, written or verbal, Client and Developer agree:
Client Responsibilities - Client agrees to provide content and guidance as outlined in the Web Site Development Agreement. In the event website completion is delayed due to client’s inability to be contacted, no response to emails or phone calls or to provide necessary content or answers to questions, there shall be at Developer’s discretion a significant project restart fee incurred to cover disruption of scheduled work and time spent refamiliarizing myself with site plans and structure. In simpler terms, if you drop off the face of the earth during production, it plays havoc with my launch schedules and ability to serve all my customers properly and thus, I will be charging you for this disruption.
Web Site Elements. Website elements are
assumed to be as described to developer and noted in Developer's notes as the scope of the project. Work added after contract, or not described in Developer's notes, is outside the scope of the contract and will be billed as a line item on the invoice. Developer shall NOT be responsible for errors resulting from content submitted that is confusing, conflicting or has errors. It is
client's responsibility, if desiring to remain within the estimate, to provide
direction, elements and content in the proper formats, proofread, photos of reasonable size, and content in the expected
quantity. If no direction as to colors, fonts, style, design elements or
other preferences are given, it is developer's discretion to choose what to
use and any changes to bring the design in line with Client's preferences is
billable to Client.
Support Download - Technical support, Training, and any other assistance with online software or project collaboration will use a third party desktop sharing program which Client agrees to download and install for this purpose. If training is included in the proposal, this is the type of training assumed. On-site, in person assistance is not generally offered except at a premium rate. We can walk you though most support or training problems by phone while we view your desktop and guide your experience. This allows us to fix problems, tutor and assist in a most efficient manner.
Training - Generally, training and support is NOT included in the estimated cost of a website. If you desire phone or email support after the site is online it will be at the current hourly rate billed in 15 minute increments (ex: 2 minute question will still be billed for 15 minutes) through a third-party desktop sharing program. In-person training to use the site will be at the hourly rate, plus drive time with a 3 hour minimium and an on-site service fee. It is strongly encouraged that you use desktop sharing software to accomplish these tasks. While larger companies (ie: Yahoo, etc.) make their money on volume, we provide custom solutions and do not offer unlimited free support. Contact the toll free number in your hosting control panel for unlimited free hosting support which includes signing up for services (ie. hosting, domain names, secure certificates). Support for FTP hosting or hosting without a control panel is billed as described in the hosting terms of service. There is a surcharge for hosting on any host whose services we are unfamiliar with because it takes additional time to become familiar with their control panel, support and procedures. Questions that encompass knowledge about the building of
a website, hosting set up, domain set up, editing pages, SEO, payment options,
software or other information shall be compensated as if Developer had done
the work himself. It is agreed Developers knowledge is a commodity and
encompasses trade secrets that shall be compensated at more than double the standard rate.
Page Content & Design will be created and added at
the hourly rate and charged against the retainer (or billed if time goes
beyond the estimated amounts). Content will be supplied in final format, as a
.doc, docx, .rtf, .txt file by email with spell check and final proofreading done by
client to remain within the estimate. If it requires typing, rewriting,
editing, proofreading, spell checking or has complex formatting it will be
subject to actual time used to make corrections. Changes to copy once it is on
the page will incur extra charges unless it is Developers error or omission.
If Developer is asked to research content, style, keywords, research industry
styles, designs, or URLs for the website, it is at the hourly rate. One
page is assumed to be approx. 200 words per page or as specified in Developer's notes if Client wishes to remain within the estimated costs. It shall be at
Developers discretion when text or photos are extensive enough to add
additional pages. All corrections, changes, edits, additions are subject
to a 15 mini-minute minimum charge per request (per email). (Its more cost effective to submit several
changes at once rather than one small change each day for example).
Phone Calls. Time is my product and unnecessary phone calls take that limited commodity (time) away from all clients. Email correspondence is included in your estimate, phone calls are not and will be charged. Special phone requests (such as to be notified when an email is sent), lengthy calls, chatty calls, or calls for any information other than credit card information (which should not be emailed) or that drag on beyond the information requested, will be billed at triple the hourly rate at developer's discretion. Time spent for consultation, questions related to clarifying site creation objectives, SEO, Statistic, and tutoring is charged at the hourly rate. Nonspecific website building calls (ie: brain pickiing calls) are charged at four times the hourly rate.
If you do not send copy, sign-offs, etc. as requested and I must continue to remind you, there will be a "nagging" fee (called a "contact fee") incurred every time I must re-remind you, to cover my time sending emails and making additional phone calls when one should do. It is very time consuming (and plays havoc with scheduled work) when I must constantly request items that you know I need but aren't sending. Occasionally there are extenuating circumstances, and if this is the case, please let me know. However, there have been sites where the time spent asking for content and nagging the client to return sign-offs has exceeded the time spent actually working on the project! This is different and in addition to the continuation fee which is for sites that are essentially abandoned with little or no content or contact for more than a month.
Photos and Images are assumed to be 2-3 per page or as
specified in Developer's notes. Anything beyond this, or photos that require extensive retouching, resizing, or editing is outside the scope of the estimate. If
not specified, this quantity will apply. Thumbnails with accompanying full
size photo will count as 2 photos. Animations, Flash graphical work, and anything done to improve the quality of photographs
supplied (brightness, color correction, blurry, cropping, straightening,
removing the background, etc.), if photos must be scanned, or borders or
effects are imposed, is at the standard rate. Client will submit only those photos he
actually intends for the site, and will provide specific download link
or the actual photo if the photo is purchased from a stock photo
site. If Developer should have to search through photos (either online
or Clients submissions) to find an appropriate one Developer will be
compensated for his time. If Developer uses a photo or artwork to demonstrate a concept, it is not automatically for use on the website. Permission must be obtained by Client from the copyright owner for use.
Ownership of Photographs and sound files. Developer may
use some of their own photographs or sound files for the Web Site. Developer
will maintain ownership of the photographs, and only grants Client a
non-exclusive right to use those photographs or sound files, and only on the
Client's Web Site.
Ownership of Logos created If a logo is created to be part of the website without specific contract for logo design, Client is granted ONLY a non-exclusive right to use that logo on the Client Web Site. Additional rights and formats are available at additional cost.
External Links Client must provide the actual address as
well how they prefer the link to read and any accompanying logos. If not
specified, link text is at our discretion.
Actual time will be charged for uploading or downloading site materials, waiting for server connections, FTP, copying, pasting, or moving an archived site to an active status. A site is considered archived if no work has been done on the site for 30 days when no continuation fee is paid or maintenance contract is in effect.
Custom Graphics and FLASH may include masthead
graphic on the first page (which may or may not incorporate the company logo)
but does not necessarily include a template for all other pages in your Web Site unless
specified. Colorful lines and bullets, and colored and textured
backgrounds may be included if desired at additional cost and included in the specifications. Rollovers, Flash, Scripts or special fonts and headings are not included unless
referred to in the specifications. Any custom graphics are created at the hourly rate. Flash
banners or Flash graphics may be billed at the programming rate, depending on
complexity. Text requested in fonts other than standard fonts (ie: Arial, Verdana,
Courier) may be converted to images for viewing or will require additional programming, so will incur extra charges to set up.
Graphics Photos and graphics shall be provided by Client
in .jpg, .png or .gif format only. Other formats (ie: Tiff, BMP, MS Works, Word
image, etc.) may increase your costs as they must be converted. Open
source royalty-free sources of artwork may be used whenever possible;
however, if a suitable image is not available, or requires purchase, edit or a
use fee, Client will assume such costs and copyright risk for all artwork used and provided. Client may provide his own graphics or
photographs. If Developer must search for a suitable graphic or photo,
time searching is a billable expense. Developer can arrange to take
quality digital photographs for Client for use on this website, (ie: Client's products, staff or facilities) at the hourly rate, including any
travel time and expenses related thereto.
Meta Tags, Keywords, SEO, etc. Will be included only if requested and included in the specifications. SEO work done will be compensated at the hourly rate and will require a specific SEO contract if more extensive than basic keywords or optimizing. It will be Clients responsibility to provide
the desired keywords, titles, descriptions, etc. SEO work may be subcontracted to an appropriate
specialist as deemed necessary by Developer.Extensive SEO work beyond unresearched meta tags, title tags or basic submissions wiill require a separate SEO contract.
Submit photos slightly larger than you expect them to appear on
the page. Photos can be cropped or made smaller, but cannot always be
made larger without degrading the image. Clear images at least 150 dpi and
slightly larger than anticipated are a good size for most uses. Excessively large photos (very high resolutions) may incur additional costs in resizing and optimizing them.
Minor corrections. Any changes or additions made that are
not Developers errors shall be billed at the hourly rate. Proofreading,
editing, rewriting, SEO edits, photo changes or any other changes requested by Client will be
charged at the hourly rate.
Reply forms & email. Client side scripting and no
validation or spam blocking will be used unless the site specifications state
otherwise.
Template Sites If a site utilizes a preformatted
template, Client will be responsible for all costs in purchasing a template to
modify. If Client brings Developer a template to modify, modification
will be at the hourly rate. If Developer must search for a template,
time searching is billable.
Consultation - Questions of a general nature (ie: how do I set up pop email, how do I log into my hosting) will be billed as consultation, whether or not you are a current client. A credit card will be required for billing if one is not on file.
Upgrades & Security. Sites using a software backend (ie: Joomla, Website Baker, Wordpress, etc.) will require regular updates and occasional patches necessary to ensure the site is secure. We will notifiy you that these are available as soon as they are known to us. Sites on your hosting may be upgraded at your convenience or as your hosting dictates. Websites hosted on our servers with other clients are required to be updated as soon as possible after upgrades or patches become available. All site upgrades are at client's expense. Most upgrades require approximately 1-2 hours to complete depending on customization done and are typically released every few months (though minor releases may be more often). Risks to upgrading include incompatibility with pre-installed extensions, templates, plug-ins, etc. which may unexpectedly increase Client's cost and time to complete an upgrade. Risks involved in NOT upgrading involve security vulnerabilities, stolen customer account information including credit card numbers, identity theft and changed or removed (hacked) content. If your site is on our servers it means you assume responsiblity for all sites on that server that are compromised and any repairs to all sites affected. We will do everything possible to minimize and correct downtime or errors during an upgrade, but are not responsible for failed installs, functionality problems, or other issues that may happen due to an upgrade and the coding therein and are beyond our control. Sites hosted on Clients own hosting may be upgraded at Client’s discretion, however Client assumes all liability and costs incurred for any security breech or functionality problems due to failure to patch or update software as suggested, which may include loss of hosting privledges.
Storage of website files will be for two years from site
completion and sign off. Two years is the typical serviceable web life of
any website that has not had significant updating and after that time there is
no reason to keep obsolete files. If you would like us to keep files
longer, or make changes after significant time has passed, or you have made
changes yourself in the interium, it is billable time to recreate or update
the site as needed. It is billable time to retrieve any files needed from storage. A site is typically transferred to storage after one month with no activity.
Industry specific restrictions - It is client's responsibility to make us aware of any restrictions or legalities relating to your industry, business or online store. Examples would be restrictions put on attorneys or financing web sites by law, sale of liquor, taxes and tariffs, etc. It is client's responsibilty to approve and assure that the site is in compliance. Shipping and postage rates will be provided by Client for all ecommerce sites and how they are calculated may be affected by the software used. It is not Developer's responsibility to test every product for shipping and/or shopping cart accuracy. Developer will do a general test, but it is clients' responsibility to make Developer aware of any problems with a shopping cart, payment system, shipping rates, checkout, etc.
Sign offs - It is client's responsibilty to check that all content, photos, links, and operability are to his satisfaction before signoff that the site is complete. Once signed off, any changes or corrections, even if they are Developer's errors, are at Clients' expense. If client neglects to sign off and site has been complete for 30 days with no response to Developer's emails, site will be considered complete for sign-off purposes. It is developers discretion whether a formal sign-off is necessary or simply a response by email which shall be as binding as any sign-off form.
Domain Name & Hosting may or may not be included as
determined by the contract and are separate from the design estimate. If unspecified, neither is included.
Hosting/Domain costs are estimated based on our choosing appropriate hosting
and domain providers for your site needs. Extra charges may be incurred if
the client's choice of web hosting service does not use a standard control panel (ie: cpanel, plesk), or does not support or provide features required by the site. Developer will
retain records of any passwords and usernames for the site and look up passwords or usernames upon request to client for a nominal fee if still available to Developer (passwords are mailed to the client upon site completion and retained for approximately 1-3 years). Developer will acquire hosting and/or domain on Client's behalf with a credit card that hosting or domain can be billed to automatically. Most hosting services require 1-2 years payment in advance. If your site is hosted with us, all outstanding invoices must be paid regardless of payment of hosting fees, and failure to pay amounts due overrides hosting fees paid. Domain and hosting services requiring set up (ie DNS, Databases, Crons)
will be at the hourly rate. It is billable time to become accustomed to an unfamilar service's c-panel and services. If Client maintains hosting and domain services himself and allows hosting or domain services to lapse, there may be a
significant retrieval fee in addition to re-setup costs, as well as developer's time to investigate retrieval possibilities. If Developer secures
such services for Client, it will be with Client's credit card and billing information on file with the 3rd party service. Client agrees to provide credit card information when authorizing
Developer to obtain services on his behalf and allows Developer to charge the
card for such payments. Client understands his needs may change in the
future requiring changes in hosting provider or services, which would be at
his own expense. Should there necessitate a change in hosting (availability,
change in type of support, etc.) it will be at Clients expense. Developer
does not warranty in any way the quality of service provided by third party Hosting or other services. If
Developer is enlisted to assist Client to renew, obtain or alleviate problems
with domain or hosting, or must contact a previous developer for passwords,
user, etc. the hourly rate will apply to all correspondence or phone calls, including tech support calls and waiting on hold. Typically all domains will be
registered to the Client with Developers email address as technical contact
(if possible), when building or maintaining the website.
Shared Hosting. Most Clients will be hosted with their own shared hosting account with access to the control panel. However, some sites my necessitate hosting on a virtual dedicated server, private server or shared account. These Clients will only have FTP access to their accounts.
Account access Client agrees to give Developer access to
his PayPal, eBay or other such merchant account, as necessary, for the sole
purpose of setting up shipping, taxes and page layout. Developer will keep account numbers, passwords, and usernames
in confidence. It shall be Client's responsibility to change all passwords
when access to such accounts for development of the Web Site is no longer
necessary. Client agrees Developer is not liable for any unlawful access to
accounts even if passwords were in Developer's possession at the time.
Programming with PHP, VB Script, JavaScript, XHTML, ASP or other
scripting will be billed at the programming rate that may be more
than the hourly rate. If programming must be redone due to changes,
server incompatibility, or moving site, recoding will be billed
accordingly. Please give me your server passwords early to avoid this
problem or allow us to help you choose a compatable host. Projected hosting costs are
subject to change without notice and may be determined by site
requirements. Open source royalty-free or local hosting sources of
scripts, shopping carts, CMS, or other scripts/programming often are used to
lessen the cost of custom work when possible, however support for such scripts may be limited and it is not in Developer's expertise to rework, edit or otherwise make changes to another's code. If there is a
purchase requirement, royalty, or use fee for such program or module, all
associated expenses will be passed on to the client as necessary, including
set-up expenses. If a custom solution is the best option in
Developers opinion, or custom changes to an existing solution is necessary,
Client will be responsible for all costs to create a custom solution and
payment may be required in advance. Client is aware there are many products
and it is not expected that Developer will have expertise with all of
them. Actual time spent learning a new shopping cart, CMS, programming
or other feature will be charged to the Client unless such cart is in demand
and Developer can reasonably expect to use this knowledge on future
work.
Navigation Links for internal navigation are not limited
but incorporating them will be at the hourly rate. Navigation is assumed
to be simple links unless noted or at Developer's discretion based on design.
Each site will include a reasonable number of external, email or bookmark
links based on the site size and type.
Any Other features as specifically outlined in Developer's notes.
If unspecified, no other features are included.FTP is the preferred method of uploading to the hosting
service. Uploading is billed at the hourly rate and please note methods
other than FTP may take considerably longer (i.e. Geocities, Tripod or other
sites that require manual uploading).
Email setup is not included unless specified. The type of
email account (POP, Web, forwarded) and number of accounts will be determined
by hosting/domain availablity and agreed upon and noted in Developer's notes. If not noted, no email accounts are included. Client is responsible for all set up time and
fees for any email accounts.
Affiliate links and services: If you desire affiliate marketing links or promotions on your site it is your responsibility to create the account with the affiliate provider and provide us with access or proper code. We will cloak links for you at an additional cost per link. If you wish us to set up the affiliate account and search for appropriate links for your site, that is considered research and is not included in the estimate. If you are interested in Google Adwords, Adsense, Analytics or other such programs, please determine if you are eligible. Some programs may require an initial or ongoing cost to be in the program. We are not responsible if after getting your site affiliate ready, you are rejected by your desired program. We are not responsible if you are denied acceptance into any 3rd party program, nor do we guarantee any income, expenses or costs associated with any 3rd party affiliate program. Please be aware, many 3rd party programs require a credit card or bank account number on file for payment purposes.
3rd party services other than hosting: We are not responsible if you are not accepted into any 3rd party program, nor do we guarantee acceptance or certain rates. If an API is required for any service or feature (such as Google Maps, Akismet, etc), we will obtain the API for you under your email address and your own account. Please promptly forward any confirming email to us immediately so work on your site can continue uninterrupted. For email, poll, survey or other services, unless otherwise stated, we will generally set you up with a 3rd party provider as these are typically more secure from hacking than those hosted on your own website. If you still desire these services hosted on your hosting, you will be completely responsible for making sure the site is secure and any repairs due to hacking or intrusion is at your own expense. All estimates assume this is the case unless otherwise stated. These services may require an initial or monthly fee to the 3rd party provider, or per unit costs, aside from our set up costs. All sites on our hosting MUST use a 3rd party provider that provides opt-in capabilities for spam control.
Contact Individual. The Client shall appoint a sole
Representative with full authority to provide or obtain any necessary
information and approvals that may be required by C O'Malley & Associates
LLC. The Client's Representative shall be responsible for coordination of
briefing, review, and the decision-making process with respect to persons and
parties other than Developer, and its subcontractors. If, after the Client's
Representative has approved a design, the Client or any other authorized
person requires changes that require additional services from Developer, the
Client shall pay all fees and expenses arising from such changes as additional
services at the hourly rate. This Client Representative is the named person on the Website Agreement.
Design Concepts. Developer will provide one design concept
for Client unless otherwise outlined. The estimate is based on one
round of minor alterations up to one hour's time. Alterations are performed
upon Developer's receipt of hard copy documentation of explicit instructions
describing the requested changes. Minor changes include but are not limited
to: color or font style changes and/or other minor changes to the design such
as movement/removal/addition of any design elements not requiring more than
one hour to complete. Minor alteration time exceeding one hour but keeping the
general design and layout of the design concept is charged at the hourly rate.
Major alterations requiring the Developer to revamp the graphic design and/or
layout of the site is considered to be an additional Design Concept and will
be charged as such. It is Developer's discretion as to whether this requires a
change order. Client's content will not be added until a Design concept is
accepted with a signature. It is Clients responsibility to understand the scope of the project as
outlined herein. It is not Developer's responsibility to research or provide
examples of existing sites within Client's industry, features or shopping
carts, without compensation.
Viewing the site. It is not within the scope of this
agreement for Developer to solve Client's viewing problems on his own computer
(such as not having JavaScript enabled, Flash installed, old computer or
browser issues, etc.). Time spent assisting with these issues will be billed
at the hourly rate. Viewing problems will be considered uniquely the Clients
if Developer has uninterested 3 rd parties view the site and no significant
problems are detected. Developer will provide screen shots to this effect.
Browser Compatibility. Designing a web site to fully work
in multiple browsers (and browser versions) can require considerable, extra
effort. It could also involve creating multiple versions of code/pages at
additional cost. We represent and warrant that the web site we design for you
will work in: Microsoft Internet Explorer (current version) and Firefox (current version) on a Windows platform although it may not look
identical in each. Though most designs will degrade well on a Mac, we do
not warrant Mac operability as not all software, scripts or designs will work
properly on a Mac. If you desire this capability, particularly for
programming, please tell us before coding begins, and expect the expense to be more. While we will make
reasonable efforts to design a fully-functional web site, our warrantee does
not cover AOL, WebTV, Opera, text-based browsers or requested special effects
that may only work in specific browsers or specific versions of browsers.
Sites will no longer accomodate Internet Explorer 6 automatically - because it has some anomolies that cause problems in viewing that are difficult to resolve satisfactorily. If you desire this capability, it will be at an additional cost and is not included.
Delivery of Web Site. Developer will use reasonable
diligence in the development of the Web Site and endeavor to deliver to Client
an operational Web Site meeting Client's direction for color and style. Client
acknowledges, however, that delivery will be based on developer's schedule and
Client's ability to provide content and direction in a timely manner. The site
is to be used only within the scope of the project and cannot be used to
create new Web Sites based on the code or design, or selling or distributing
code or graphics to a third party or to use on other sites without Developer's
express permission.
Should Client not provide sign offs or content as requested, then reappear weeks or months later to complete project, Client will go to the bottom of the queue for projects awaiting completion if a monthly continuation fee has not been paid until that time.
Assignment of Project. Developer reserves the right to
assign subcontractors to this project to insure the right fit for the job as
well as on-time completion. A subcontractor's hourly rate may differ
from that of Developer and will be billed in accordance with the
subcontractor's rate.
Work on Existing Web Sites. Work previously done by
another firm or a template will be provided to Developer in a useable format.
Developer will not be responsible for the coding or operability of such site.
Any work required to correct coding will be at the programming hourly rate. If
a site is partially done, the underlying coding may still require a
significant amount of work. Content utilizing Flash will require an unlocked
.fla file for editing or the work must be recreated at Client's expense. Sites
created in Front Page,or other such editor, or that use frames or tables may
require recoding at Client's expense. Additions or deletions to existing
content will be at the hourly rate. It is assumed that if Client has
contracted with Developer to enhance or change an existing site, Client
indemnifies to Developer that he has sufficient copyright to the site to allow
Developer to change, alter, copy, delete, download or edit in any way an
existing site, including any underlying code, graphics, or images without
infringement of copyright statutes. Client gives Developer permission to
access and download the site as needed and will provide hosting and domain
passwords/usernames as necessary.
Completion of project will be based on many factors. It
is estimated the site will be ready for final approval a reasonable time after
all content is received, all sign offs are received, and payment is made in
full. The project may be delayed due to any number of factors beyond
Developer's control including but not limited to incomplete content, confusing
content, sign off issues, changes or additions/deletions to supplied content,
force majeure, non-receipt of payment, host and domain availability, coding
issues, software bugs and viruses, previously scheduled projects, rush
projects, communication issues, etc. It is not Developer's responsibility to
remind Client of Client's responsibilities such as providing content when needed, during the course of the project.
Delivery of Web Site Developer will use reasonable
diligence in the development of the Web Site and endeavor to deliver to Client
an operational Web Site meeting Clients direction for color and style.
Client acknowledges, however, that delivery will be based on developers
schedule and Clients ability to provide content and direction in a timely
manner. The site is to be used only as one functioning website and cannot
be used to create new Web Sites based on the code or design, or selling or
distributing code or graphics to a third party or to use on other sites
without Developers express permission. At completion sign off, Client shall provide Developer with any
non-functioning links, typos, processing problems so that they can be repaired before the site goes live. It is Clients responsibility to test the
final website thoroughly to ascertain complete functionality, if Developer is
requested to test every link and process, it will be at the hourly rate.
Repairs after sign off will be at the hourly rate. Repairs to a site coding that was made non-functional by a third party or client will be at twice the usual hourly rate as it takes considerable time to troubleshoot and repair those kinds of errors. Retrieving a backup from the server IF it exists, will be 3 times the hourly rate, including research to see if this is possible. It is strongly recommended that those clients doing their own editing with or without a CMS do regular backups, or purchase maintenance services which would provide a monthy backup and/or repairs at a discounted rate.
Extension of project. Once the site is deemed final,
Developer will perform any additional work at the current hourly rate, which
may differ from the rate stated in the contract.
Accepting the work and at what rate will be at Developer's discretion. Changes
must be made in writing (email or fax) and approved by email or fax. Changes
or additions will require a new retainer for maintenance as all maintenance work is paid in advance.
Other Provisions. Developer does not warrant that the
functions contained in these web pages or the Internet Web Site will meet the
client's requirements or that the operation of the web pages will be
uninterrupted or error-free. The entire risk as to the quality and performance
of the web pages and Web Site is with client. In no event will Developer be
liable to the client or any third party for any damages, including any lost
profits, lost savings or other incidental, consequential or special damages
arising out of the operation of or inability to operate these web pages or Web
Site, even if Developer has been advised of the possibility of such damages.
It is highly recommended that complex or e-commerce sites do not go live until
operating at Client's satisfaction as evidenced by a final sign off. If that is not possible, it is Clients' responsibilty to check the site development regularly and inform Developer immediately of any unexpected problems. Developer is not be
responsible for any downtime, errors, or other technical problems or lost
sales, links that stop functioning, images that do not load after the site is live.
Sites that have been uploaded to hosting for ongoing development may be removed or server access blocked for non-payment, including non-payment of maintenance or other services.
Search Engines/Meta Tags No meta tags or optimizing will
be provided
unless otherwise outlined in the specifications. This may impact your rankings
and additional search engine optimization is strongly recommended a minimum of SEO is done for any site at additional cost. All submissions including those to directories, professional
organizations, web rings, etc. will be billed at the hourly rate. Any SEO
included will be outlined in Developer's notes. Developer makes no warranty or
guarantee of any kind as to the rank that the site will attain in any given
search engine or directory. Developer shall not knowingly engage in any SEO practices that
are considered "spam" or that may cause a search engine to penalize the
website, such as using same-colored text to repeat keywords, inappropriate use
of keywords, or indiscriminate linking with unrelated link farms. Survival Unless expressly specified otherwise, the terms
of this Addendum shall survive the expiration of this Contract. If any
provision of this agreement shall be unlawful, void, or for any reason
unenforceable, then that provision shall be deemed severable from this
agreement and shall not affect the validity and enforceability of any
remaining provisions.
Copyright to Web Pages.
Upon completion and full payment, Client will have license to use the web site as an end product but C O’Malley & Associates LLC retains full copyright to artwork, coding and any original files including derivative works per US copyright law. Original files and copyright may be purchased to obtain full copyright. Client is assigned license to use as a Web Site,
the design, graphics, and text contained in the finished assembled Web Site.
Rights to photos, graphics, source code, work-up files, and computer programs
are specifically not transferred to the client, and remain the property of
their respective owners. Developer and its subcontractors retain the right to
display graphics and other Web design elements as examples of their work in
their respective portfolios and to display a small notation or banner on
clients site with a link to Developer 's web page. Sites that were created with Client's artwork may be included in Developer's portfolio if Developer did any reasonable construction or reconstruction of the site. For additional cost our banner may be removed, or ownership of workup
files tranferred (not already owned/licensed to a third party), or the site
removed from our portfolio.
Ownership Rights . Client shall retain all of its
intellectual property rights in any text, images or other components it owns
and transmits to Developer for use in the Web Site. Client shall hold the
copyright for the agreed upon version of the Web Site as delivered (final
output), and the Client's copyright notice may be displayed in the final
version. Developer retains exclusive rights to pre-existing material they use
in the client's project(s). Client does not have right to reuse, modify,
resell or otherwise transfer material owned by developer or 3rd parties.
Developer retains rights to all original artwork, creation files, photographs
used to create any custom graphics, and design and layout of the website including derivative works.
Client Updating. If client wishes
to do his own updates, it will be with software or embedded programming
approved by Developer commonly called a content management system. This may
include, but is not limited to content management software, a
shopping cart, database, polls, or other such tools. The estimate does not reflect the
extra work involved to make the site easily editable by such a tool, nor does it include the purchase of the tool, or teaching the client to use the
software or tool, which is an additional expense. Repairs for any damage done by client outside the GUI/interface provided will be charged at twice the standard rate. Repairs to formatting, content or other client managed areas will be at the standard rate. If the site has been archived by developer, typically one month after the last edit requested, charges will include pulling the site from the archive or off the webserver to make repairs, which may include significant download and upload times.
Backup & Maintenance Responsibilities Responsibility for database and site backups, script bug fixes, security updates, database compacting, website uptime monitoring, traffic, page or site restoration, cron jobs, or other backend or frontend maintenance will be client’s total responsibility without a specific maintenance agreement addressing these issues. Client may purchase a maintenance agreement that addresses the specific issues Client desires maintained. If a site is hacked due to the client not installing recommended updates and security, repairs to a hacked site, repair will be at twice the standard rate and any costs incurred to repair the site. This shall include research needed to determine the extent of the hacking. This may include download of logs, contact with hosting support, or even moving the site to another host at client's expense. It is client's responsibility to monitor and request software updates, bug releases, and security fixes in the absence of a maintenance agreement that covers those specific areas. If the site resides on Developer's shared hosting, updates may be done when necessary at client's expense, so as not to compromise the server. These updates will be billed to Client at Developer's discretion.
Mailing list & Portfolio Client agrees to inclusion on Developer's mailing list and portfolio.
Use of Website Client agrees to NOT use the Website to:
- upload, post, email, transmit or otherwise make available any Content
(as defined below) that is unlawful, harmful, threatening, abusive,
harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of
another's privacy, hateful, or racially, ethnically or otherwise
objectionable;
- harm minors in any way;
- impersonate any person or entity, forum leader, guide or host, or
falsely state or otherwise misrepresent your affiliation with a person or
entity;
- upload, post, email, transmit or otherwise make available any Content
that infringes any patent, trademark, trade secret, copyright or other
proprietary rights ("Rights") of any party;
- upload, post, email, transmit or otherwise make available any
unsolicited or unauthorized advertising, promotional materials, "junk mail,"
"spam," "chain letters," "pyramid schemes," or any other form of
solicitation, except in those areas (such as shopping) that are designated
for such purpose;
- upload, post, email, transmit or otherwise make available any material
that contains software viruses or any other computer code, files or programs
designed to interrupt, destroy or limit the functionality of any computer
software or hardware or telecommunications equipment;
- provide material support or resources (or to conceal or disguise the
nature, location, source, or ownership of material support or resources) to
any organization(s) designated by the United States government as a foreign
terrorist organization pursuant to section 219 of the Immigration and
Nationality Act;
- "stalk" or otherwise harass another;
- Offensive Material or content that avocates or
includes illegal, spamming, libelous, defamatory, obscene, pornographic, or
offensive material, whether hosted, emailed, included or linked to. It
is our sole discretion whether such material is deemed offensive and must be
removed.
Client understands and
agrees that any attempt to break security or to access an account that does
not belong to Client will be considered a material breach of these parameters,
and such breach may result in possibly referral to law enforcement
authorities. Unauthorized access to the the testing server, restricted
portions of the server (restricted files) is a breach of these parameters
whether or not such activities are a violation of law and Client may be
subject to damages of 10 times the estimated contract amount. Further, you are
required to take reasonable security measures to prohibit others from
unauthorized access (ie: not giving out the URL of your site's temporary
location to customers and colleagues).
Payment Client agrees that all retainers and payments
made are non-refundable.
- Client authorizes credit card to be charged if the account becomes delinquent for the full amount in arrears plus any late fees. Late fees will be applied as outlined herein if payment is not received by the 15th of the month. There is a 5% convenience fee for all non-cash payments which is allowed by Michigan law.
- Client agrees to make all payments payable in the form of check, money
order, cashier's check, by providing credit card information or through
PayPal (Visa, MasterCard, American Express, Discover accepted). All payments
are to be made to C O'Malley & Associates (for PayPal:
) by the 15th of the month or late fees will be incurred.
An email notifying of late fees may be sent when the account is past due
after late fees have been applied. Any payments or partial payments will be applied to late fees
first, then the balance due. Late fees will continue to accumulate until the
bill is paid in full.
- Site review consultation is due upon completion of the
consultation. Client has the option of
retaining services of Developer immediately and consultation fee will be
waived as a line item on the first invoice. If services are retained within 10 days, a percentage of the fee will be
discounted as a line item on the first billing. Client agrees that
acceptance of any in-person on-site consultation or meeting is acceptance of
agreement to pay for time and services provided, including drive time.
- A retainer is due upon signing the contract with the balance billed as work progresses monthly. Client shall make payment within 15 days of invoice for work billed. All invoices are mailed on or around the 1st of the
month and are due on the 15th of the month regardless of actual receipt, or
late fees will apply. If no content is received within the month, a continuation fee will apply.
- Once an account has become past due, client may be required to pay for all future services in advance.
- Maintenance services requested without an active contract (such as one in effect for maintenance or web development) will require a minimum retainer (or double the amount of estimated work) in advance. The retainer fee will be charged against time spent. Developer will notify client when the retainer falls to $50 or less so he can remit additional funds to cover expected work.
- In case the client has not secured Web space on a web hosting service,
or given to Developer permission and the means to secure space by
completion, the web pages may be delivered to the client on CD or
attached to an E-mail message. Uploading pages via FTP and advertising the
pages to Web search engines occur only after the site is complete payment is
made in full. All payments will be made in US funds drawn on US banks or by Credit card or Paypal.
- Sales tax of 6% may be charged to Michigan residents, based on the
entire amount and included in the final payment.
- Payments made through
PayPal or by Credit Card will incurr a "processing or convenience fee".
- A credit card must be provided before work commences to cover the purchase of hosting, scripts, software or if Clients
account become deliquent.
- Accounts more than 45 days past due without a valid credit card on file will be turned over to a collection
agency, will incur a significant collection fee, and may be subject to
court action.
- It is Client's responsibility to know our billing policies and when
accounts are due, and if a bill is not received, to call and ask for a
replacement. Non receipt of bill does not negate late fees for nonpayment. Bills are sent by email or US Mail.
- Bills still unpaid on the 16th of the month will assess a 20% or $20 late fee, whichever is larger and will be assessed the late fee monthly on the total unpaid balance until payment is made in full. Once payment is in arrears, all future work will require prepayment.
- Payments that are overdue (from invoice due date) will be charged
to any on-file credit card available (even if provided for hosting or some other use) with applicable late fees and surcharges.
- In the event of nonpayment or abandonment - all licenses and ownership of the website will
revert to the sole property of Developer with no claims by Client. Any remaining time on domains or hosting may be transferred to the
administrative contact and sold at their discretion on the open market to
recoup losses.
Abandonment/Failure to Pay C O'Malley
& Associates reserves the right to change the terms herein including but
not limited to increasing its fees. If C O'Malley & Associates is waiting
on materials or approvals to complete the project for more than 30 days, the
full maximum (or minimum if no maximum is determined) estimated amount is due
immediately, and we start at a $0 balance should Client decide to continue the
project at a later date unless a monthly continuation fee is paid to keep the
account active.
- In the event legal action is necessary to collect on
balances due, Client agrees to reimburse Developer for all expenses
incurred to recover sums due, including attorneys' fees, collection costs
and other legal expenses.
- Client understands he is not Developer's only client and shall provide
information, direction and content in a timely manner or Developer shall
have the right to terminate or postpone his project until time permits. If
all content is not forthcoming, based on project size, the project may be
considered abandoned at Developer's discretion. Developer may charge a
monthly continuation fee for incomplete projects held up due to lack of
content, communication from Client, direction or sign-offs.
- Client may terminate the project with one-month notice in writing and
payment in full. In the event Client fails to pay charges, Developer reserves the right to bill outstanding
sums to any credit card on file. You also
agree to pay all current charges as well as taxes and fees assessed against
you on the charges, late payments, interest or other fees as stated on your
bill.
- Client will also be charged a fee for any check returned to
Developer.
- In the event of non-payment, or incomplete payment of invoiced amounts,
Developer reserves the right to remove the site. A charge will be incurred
to re-establish the site and late fees will apply.
- Hosting will be considered abandoned when there is no active site visiable and the DNS points elsewhere. Abandoned hosting shall become property of the developer who shall have authority to change passwords, files or settings, delete databases or install new files. In abandoning the hosting, Client cedes all rights to the hosting account for the time remaining, to Developer for his own use.
- If a site is abandoned due to nonpayment of domain or hosting, or is removed or replaced on the Internet, the site license reverts to C O'Malley & Associates ownership. At our discretion the site design may be sold or auctioned on the open market with no compensationt to Client. Upon abandonment, Client waives all rights to the site, abandoned domain(s) and any time remaining for hosting services.
- Developer reserves the right to
obtain expired domains without compensation to Client or remove files from the server until such time a the account is current.
Stop Work Developer has the right to stop work on the
Project if Client fails to pay within 16 days of invoice date, and Developer may
retain all materials created for or provided by Client in furtherance of this
Project, until such time as Client pays what is due. Developer shall not be
obligated to provide any files, images or other Project materials to any third
party at Client's direction unless and until Client has paid all sums owed to
Developer to date.
The site license is not transferrable without permission of the Developer.
Rush work will be invoiced at the premium rate without
guarantee. Requests for rush service must be made in writing (postal mail,
email or fax) or work will be scheduled to best serve all clients. Emails requesting changes “asap” will be considered to be requesting rush service at the premium rate.
Confidentiality. Client and Developer acknowledge and
agree that Proposals, Specifications and all other documents and
information related to the development of the Web Site will constitute
valuable trade secrets and will be kept confidential. Client shall not discuss
the price charged by Developer for this Project with any third party not a
party to this Contract.
Limited Warranty and Limitation on Damages . If the Web
Site does not conform to the specifications as outlined, Developer shall be
responsible to correct the Web Site without unreasonable delay, at Developer's
sole expense and without charge to Client. Developer will bring the Web Site
into conformance with outlined specifications. This warranty shall be the
exclusive warranty available to the Client. Client waives any other warranty,
express or implied. Client acknowledges that Developer does not warrant that
the Web Site will work on all platforms, print, or print as viewed due to the
nature of web browsers. Client acknowledges that Developer is not responsible
for the results obtained by the Client on the Web Site. Developer is not
responsible for any errors or omissions, express or implied except to correct
the error when discovered.
Independent Contractor Developer is retained as an
independent contractor. Developer will be fully responsible for payment of
their own income and taxes on all compensation earned under
this Agreement. Developer understands that they will not be entitled to any
fringe benefits that Client provides for its employees generally or to any
statutory employment benefits, including without limitation worker's
compensation or unemployment insurance.
Adjustments Any work outside the job scope of the
original price quotation is additional work. If specific software is required to
develop Client's site that Developer would not have use for otherwise, Client
agrees to the purchase of such software for Developer's sole use. Developer
agrees to provide Client with a detailed invoice of services provided.
Ongoing Relationship Future miscellaneous updates,
additions or changes may be billed and completed in accordance with the terms
of this contract, not necessitating a new agreement. Work will be done as time permits, with maintenance contracted Clients first. If it is expected that work shall be
completed on an ongoing regular basis (i.e. Monthly, weekly) or the scope of
the project is extensive, it may warrant a new contract at developer's discretion. Any and all work
done after completion of the site under the terms of the agreement will be at
current rates and a prepaid retainer supplied for blocks of time. Terms and rates are subject to change without notice. If
proper sign offs are not returned upon completion of the project,
determination as to completion status is at Developer's discretion.
Legal Provisions
Entire Agreement This Agreement Addendum is binding to
any contract entered into with Developer including any implicit or implied,
verbal or otherwise. Any payment of services is evidence of acceptance of this agreement.
Responsibility for Theft and Attorney's Fees Developer
has no responsibility for any third party taking all or any part of the Web
Site, destruction to, or hacking the site. If it is found that any party
removes or downloads all or part of the Web Site in development, and is then
posted on the World Wide Web on Client's behalf before payment is received in
full - Client will be responsible for damages every day it is viewable. In the
event any party to this Agreement employs an attorney to enforce any of the
terms of the Agreement, the prevailing party shall be entitled to recover its
actual attorney's fees and costs, including expert witness fees. Both parties
agree arbitration is the preferred method of resolving disputes and will be
attempted before litigation.
3rd Party Services. All
monthly maintenance and set-up fees for hosting, shopping carts, search engine
submissions, content management software, "advanced" searches, statistics,
guest books or other subscriptions that are not offered without fee by a third
party will be in addition to design costs. Such services are subject to change
without notice and in no way is Developer liable for third-party subscription
offerings. If these offerings require upgrades or security fixes any changes will be billed at the programming hourly rate. All payments for initial set up
and the service are the responsibility of client.
After site completion,
changes or edits requested by email, fax or telephone will require payment in advance if a maintenance agreement is not in place. Maintenance without a contract will be available in blocks of time, prepaid in advance ONLY (unless other arrangements are made). The prepaid amounts can be used any time within a calendar year. When maintenance time is close to running out, I will notify you and invoice you for another block of time. All website accounts must be current before starting maintenance without a contract. All uncontracted maintenance work will be done as time permits, with priority given to Clients with a maintenance contract. Client and
Developer may negotiate a lower fixed monthly or yearly price for regular
maintenance, or maintenance based on a 'refillable' retainer, if Client
anticipates regular or periodic changes to the site.
Transfer of Rights Only in the event Developer is unable to
continue maintenance of the Web Site shall Client have the right to use pre-existing material (except for
work-up files which may be purchased separately) owned by the developer in
connection with the client's Web Site.
Section 508 and Web Standards. Developer warrants only that the site was
checked for common compliance issues at the time and does not warrant
compliance since technologies supportive of 508 and web standards are changing constantly.
Developer may make suggestions, but it is solely Client's responsibility to be
in compliance with any state or federal laws concerning the Web Site created.
Compliance or standards check is not included unless included in specifications.
Terms of Service, provisions, and elements are subject to
change without notice. C O'Malley & Associate's failure to insist upon or
enforce strict performance of any provision of this Agreement shall not be
construed as a waiver of any provision or right.
Addendum to the Terms of Service regarding: HotNReady Website Offer
Our support doesn't end when your site is complete. We are always here to answer questions about your site, it's hosting, domain and take care of your website maintenance needs. We offer several outstanding and inexpensive plans to keep your site up-to-date. We'll let you know when software updates become available to protect your site from hackers and malware.
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Development will progress at a pace you feel comfortable with. We want your input and include you in the site development process so that it becomes your very own. There are mainly two phases to creating your site. The design phase where we create the design and it's unique look and feel, and the development phase where we configure the software and code in the content.
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Our strategy is to get you found on the search engines as fast and effectively as possible. We use Style Sheets, Google site maps, follow Accessibility standards, and use every legitimate SEO technique to improve your search engine rankings, while still giving you a user friendly, attractive site.
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FREE tips and tricks for your website....
